Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's (KSP) denial of the open records request of Michael L. Burman, Esq., for a copy of a videotape of an accident included in KSP case # 1-97-1465.
Diane H. Smith, Official Custodian of Records, KSP, responded to Mr. Burman's request, advising him that the case was still considered active by the KSP. In her response, Ms. Smith stated:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(l) exempts records made confidential by separate statute. KRS 17.150 (2) exempts law enforcement files or cases that have not been closed. The video tape you seek is part of an open case and is exempt from inspection.
In his letter of appeal, Mr. Burman indicated he represented clients involved in a civil action related to the KSP case and wanted the tape for use in the civil case. He stated that the KSP had released at least a portion of the tape to WPSD-TV Channel 6 in Paducah and that a portion of the tape was shown on a newscast.
Ms. Smith, KSP, as authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, responded to the letter of appeal by letter, dated October 30, 1997. Ms. Smith stated that, as of that date, the case still remained active and open and reiterated that the request for a copy of the tape had been denied pursuant to KRS 17.150(2) which exempts law enforcement files of cases that have not been closed. As to Mr. Burman's assertion that the tape had been released to a television station, Ms. Smith advised:
In checking with supervisors at the Mayfield Post, the videotape was not released to a television station by any Kentucky State Police officer or employee. A copy of the tape was turned over to the Office of the Commonwealth's Attorney along with other evidence in this case so a determination could be made by that office regarding prosecution. If the videotape was released to the press by the Commonwealth's Attorney, we have no control over that situation.
For the reasons which follow, it is the decision of this office that the Kentucky State Police acted consistently with the Open Records Act in denying access to the videotape from its investigative file.
KRS 61.878(1)(l) states that among the records which are excluded from public inspection are "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 17.150(2) provides in part for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies, prior to the completion of the prosecution or the decision not to prosecute. 96-ORD-25.
In addition, KRS 61.878(1)(h) authorizes a law enforcement agency to withhold from public inspection its investigative files while the case in question is pending or determination not to prosecute is made.
This office has stated in numerous past opinions that a Kentucky State Police case file is not open for inspection while the investigation or prosecution is ongoing. 96-ORD-183; 95-ORD-15; 93-ORD-98; OAG 91-8; and OAG 90-143.
It is, therefore, the decision of the Attorney General that the denial by the Kentucky State Police of the request for a copy of the videotape was consistent with and supported by the provisions of the Open Records Act, inasmuch as active files of the KSP are not subject to inspection until the completion of the prospective prosecution. KRS 61.878(1)(l), KRS 17.150 (2), and KRS 61.878(1)(h). Once the prosecution is completed or a decision to take no legal action has been made, the investigative report will be subject to public inspection unless excluded under another statutorily recognized exception. 96-ORD-76.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but he should not be named as a party in that action or in any subsequent proceeding.