Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police properly relied on KRS 61.878(1)(l) and KRS 17.150(2) in denying Nina L. Metz's October 8, 1997, request for a copy of the accident report in case number 3-97-1014 in which Jim Harper was killed. Ms. Metz is an employee of National Insurance Adjusters Inc., and requested the document for purposes of claims settlement. In a letter dated October 13, 1997, KSP records custodian Diane H. Smith advised Ms. Metz that this case is still considered active. For the reasons which follow, we find that KSP properly withheld the investigative file, pending completion of prosecution or a determination not to prosecute, but that it must immediately furnish Ms. Metz with a copy of the accident report if it has not already done so.
In a recent decision, this office observed:
Among the public records which may be excluded from inspection are those described in KRS 61.878(1)(l). That provision authorizes public agencies to withhold "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) restricts access to intelligence and investigative reports maintained by criminal justice agencies "until prosecution is completed or a determination not to prosecute has been made." Portions of the reports may be subject to continuing exclusion, even after prosecution is completed or the decision not to prosecute has been made, if they fall within the parameters of KRS 17.150(2)(a), (b), (c), or (d), but refusal under these circumstances must be justified with specificity. KRS 17.150(3).
Read together, KRS 61.878(1)(l) and KRS 17.150(2)authorize KSP and other criminal justice agencies to withhold investigative files in their custody while the case is active. Numerous decisions of this office support this view. For example, in OAG 78-639 the Attorney General affirmed a Commonwealth's Attorney's denial of a request for records pertaining to a criminal investigation, noting that "the Open Records Law does not require a prosecutor to submit his papers about a case still pending to public inspection. " In OAG 83-123, we affirmed the Frankfort Police Department's denial of an investigative file involving a shooting incident, explaining that "the investigative files which are to be open to public inspection are those pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him." In OAG 83-481, we affirmed the Jefferson County Police Department's denial of a request for records relating to an arrest for possession of stolen property, holding that the right of inspection recognized in KRS 17.150(2) is contingent upon the conclusion of the prosecution or a decision not to prosecute. See also, OAG 85-93; OAG 86-59; OAG 86-81; OAG 91-8; OAG 91-132; OAG 92-46; 96-ORD-25.
This office has also affirmed KSP's denial of requests for records relating to ongoing investigations submitted by attorneys representing interested parties on the basis of KRS 61.878(1)(l) and KRS 17.150(2). Thus, in OAG 87-35, we upheld KSP's denial of an attorney's request to inspect records relating to an arson investigation. The attorney represented the estate of an individual killed in the fire. Nevertheless, we held that denial was proper "at this time as the investigations pertaining to the death and the fire have not yet been completed and a determination has not been made as to whether legal action will be taken." OAG 87-35. Similarly, in OAG 88-27 we upheld KSP's denial of an attorney's request for photographs taken at an accident scene. See also, OAG 90-104. We reached the same conclusion in OAG 90-143, holding that KSP properly denied an attorney's request for investigative records relating to a death which had occurred one and one-half years before.
As Kentucky's courts have recognized, analysis of the propriety of an agency's denial of an open records request "does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994). However compelling the requester's need for the record, it is the nature of the record that is controlling.
98-ORD-30, p. 1-3.
The Attorney General has, however, consistently recognized that "uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential, and are open records under the open records law." OAG 89-76, citing OAGs 83-53, 80-210, and 76-478. In a footnote appearing in 97-ORD-6, we observed:
The status of these opinions is somewhat clouded by the controversy surrounding the 1994 amendments to KRS 189.635. Those amendments, which made accident reports confidential except as to parties to the accident, their insurers, their attorneys, and news gathering organizations, were declared unconstitutional in Stephen Amelkin D.C. v. Commissioner, Department of State Police , Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed , No. 96-5942 (6th Cir. July 2, 1996). The department is currently enjoined from enforcing these amendments, and, pending resolution of the appeal in the Sixth Circuit, the authorities cited remain valid.
The Amelkin case has been scheduled for oral argument in April, 1998, but the issues before the Sixth Circuit remain unresolved, and the authorities cited valid. KSP must, upon request, produce copies of accident reports upon prepayment of reasonable copying charges.
In her original request, Ms. Metz asked that KSP send her "a copy of the accident report dated July 24, 1997, involving [Lee Houlette and Jim Harper]." KSP responded by denying her request "for a copy of Kentucky State Police case # 3-97-1014. . . ." It is unclear whether Ms. Metz intended that her request be construed so broadly. In correspondence with this office, she referred to her request for "a copy of the . . . case" but used this phrase interchangeably with the phrase "a copy of the report." Clearly, Ms. Metz is entitled to receive a copy of the accident report at this time. We affirm, however, KSP's refusal to disclose the investigative file until prosecution is completed or a decision not to prosecute is made. On February 12, 1998, KSP notified this office that the case is still active. Access to the case file was therefore properly denied on the basis of KRS 61.878(1)(l) and KRS 17.150(2).
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 should not be named as a party in that action or in any subsequent proceeding.