Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in responding to Jane E. Garfinkel's request for a copy of the KSP's investigative file relating to Julia and Gregory Grout and the incident involving mercury which occurred at the St. Elizabeth hospital on March 31, 1998. Ms. Garfinkel is an attorney representing certain defendants in a civil action related to the incident and requested access to the KSP's investigative file for use in the civil litigation. We believe that 98-ORD-30, a copy of which is attached hereto and incorporated by reference, is controlling and, on authority of that decision, affirm the KSP's denial of Ms. Garfinkel's request.
In 98-ORD-30, this office addressed the propriety of KSP's reliance on KRS 61.878(1)(l) and KRS 17.150(2) to deny inter alia , an insurance company's request for an open investigative file relating to the death of an employee of one of its insureds. We analyzed, in some depth, the line of open records decisions affirming KSP's reliance on the cited provision, and concluded that:
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. In the appeal before us, that record is excluded from inspection by the public until the prosecution is completed or a decision not to prosecute is made. In a letter to this office dated January 27, 1998, KSP confirmed that its investigation into the death of Charles Edward Howard is still active. We therefore conclude that KSP properly denied Mr. Lewis's clients' request for the investigative file.
98-ORD-30, p. 2-3 (emphasis in original). Here, as in 98-ORD-30, KSP has confirmed that the investigation into the incident involving the Grouts is still active. Accordingly, we affirm KSP's denial of Ms. Garfinkel's request for the reasons set forth in 98-ORD-30.
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.