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 is before the Attorney General on appeal from the Kentucky State Penitentiary's (KSP) denial of Larry Roberts's open records request for a copy of his polygraph results and questions taken during the year of 1998 or 1999.
James Potter, Internal Affairs Officer, KSP, denied Mr. Roberts's request, explaining that the record was part of an ongoing investigation of both Internal Affairs and the Kentucky State Police, and, thus, was exempt from disclosure under KRS 61.878(1)(h).
By letter dated April 2, 1999, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in Mr. Roberts's letter of appeal. In her response, Ms. Biggs advised that the institution's internal administrative investigation was still ongoing and the Kentucky State Police was investigating the matters as well. She reiterated that, since the investigations are ongoing, the requested record was exempt under KRS 61.878(1)(h).
For the reasons that follow, we conclude that the KSP properly denied Mr. Roberts's request. KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
This office has consistently recognized that an agency involved in an administrative adjudication is not required to disgorge documents relating to its investigation or enforcement action until the action has been concluded. 93-ORD-69.
Since the Kentucky State Penitentiary's internal administrative investigation is still ongoing, we conclude that the institution properly denied Mr. Roberts's request for a copy of his polygraph results under KRS 61.878(1)(h). Moreover, because the Kentucky State Police is also investigating the matter, we note that where there is concurrent jurisdiction between two agencies, and both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in its own investigation. OAG 83-39, OAG 90-67, and 94-ORD-7.
In his letter of appeal, Mr. Roberts argues that he is entitled to the requested record since it pertained to him. However, the release of records under KRS 61.884 is subject to the provisions of KRS 61.878. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
As noted above, we concluded the institution properly relied on KRS 61.878(1)(h) in denying Mr. Roberts's request. Accordingly, since the requested record is exempt from disclosure under KRS 61.878(1)(h), it is not required to be disclosed under KRS 61.884.
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.