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 Bill Hamilton's request for a copy of the taped interview of Mary Lawson conducted by the State Police, and used in cases 10-95-2951, 10-95-2952, and 10-95-2953. For the reasons that follow, we find that the State Police properly denied Mr. Hamilton's request.
In her March 25, 1999, response to Mr. Hamilton's request, Diane H. Smith, official records custodian for the State Police, stated that the cases identified in his request "are still considered active." Citing KRS 61.878(1)(l) and KRS 17.150(2), she argued that because the requested records "are part of open cases, [they] are exempt from inspection." In a supplemental response directed to this office, Ms. Smith explained that these cases "are still active at the request of the Commonwealth's Attorney because [they are] pending appeal and the evidence cannot be destroyed." The investigation will remain open, she concluded, "until all appeals are exhausted." The arguments advanced by the Kentucky State Police are fully supported by law.
KRS 61.878(1)(l) 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.
This provision operates in tandem with KRS 17.150(2) to exclude from public inspection "intelligence and investigative reports maintained by criminal justice agencies . . . [until] prosecution is completed or a determination not to prosecute has been made." The term "intelligence and investigative reports" is, in our view, broad enough to extend to a taped interview of a victim of, witness to, or participant in the criminal act giving rise to the investigation. Based on a line of opinions dating back to 1976, and affirmed by the Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), we conclude that the disputed tape may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
It is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 17.150(2) as well as KRS 61.878(1)(h). 1 See e.g., OAG 76-424; OAG 82-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69. Thus, in OAG 83-356, we stated that a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken. OAG 83-356, citing Cornett v. Judicial Retirement and Removal Commission, Ky., 625 S.W.2d 564 (1982). These decisions were premised on the notion that if a criminal case is on appeal, the possibility exists of a remand for a new trial, and for this reason the prosecution is not completed.
In 1992, the Kentucky Supreme Court affirmed this position. In Skaggs v. Redford , above, the Court considered whether the Commonwealth's defense of a collateral attack on a criminal conviction is part of the prosecution of the criminal case. The Court concluded that it was, reasoning that "the State's interest in prosecuting [a convicted criminal] is not terminated until his sentence is carried out." Skaggs at 390. The Court specifically rejected the argument that this interpretation of the law was "unduly harsh, because it means the more serious the criminal conviction and sentence the longer the convicted criminal's file will remain closed." Id. at 391. Instead, the Court expressed its confidence in "the judicial rules of practice and procedure that apply to [criminal] cases[s] . . . [and that] require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id.
The Kentucky State Police maintain that Mr. Hamilton's case remains open at the request of the Commonwealth's Attorney because an appeal is pending. This brings the case within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h), and records and reports generated in the course of the investigation, including the taped interview of Mary Lawson, remain exempt until prosecution is completed. We therefore affirm Ms. Smith's denial.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(h) excludes from public inspection:
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.