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 actions of the City of Franklin Police Department relative to Tony Reynolds' open records request, which requested the Department to:
Furnish a copy of all names and what evidence and on what day it was released to the person or persons per Court Order from Circuit Court Judge William R. Harris, dated November 14th 1997 on Case No. 95-CR-00008 and the whereabouts of my 30.06 Remington Rifle, serial no. 6919536 that is in your evidence unit
After receipt of Mr. Reynolds' letter of appeal, we sent a Notification to Agency of Receipt of Open Records Appeal to the City of Franklin Police Department. W. Scott Crabtree, City Attorney, provided this office with a response to the issues raised in the appeal. In his response, dated February 23, 2000, Mr. Crabtree advised that neither he, as attorney for the City of Franklin, the City Clerk, nor the Police Chief had received a written request for records from Mr. Reynolds.
Without waiving the objections to the vague wording of the appeal, Mr. Crabtree stated that Mr. Reynolds' request appeared to be as follows:
a. Where are the guns that were found by the city police?
b. Where is the complaining party's 30.06?
c. All "paperwork from the City Police Department where the guns of Mayor Larry Freas - my guns went."
Addressing these requests, Mr. Crabtree stated:
6. The undersigned has learned that all records and/or copies of records regarding the above-referenced request were forwarded to the Commonwealth Attorney's office in Simpson County, Kentucky. A Special Commonwealth Attorney was appointed to represent the Commonwealth in prosecuting the case. His name, address and phone number are as follows:
7. It is the undersigned's information and belief that all records regarding the requests made are currently being or have been compiled and maintained by the above-referenced Commonwealth Attorney. As such, KRS 61.878[1](h) states that the records requested are exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
8. Without further waiving the objections stated above, the City of Franklin, Kentucky states that the Open Records Act request has been made to the wrong public agency and should be made to the above-referenced Commonwealth Attorney's Office.
By letter dated February 25, 2000, Mr. Reynolds provided this office with a reply to Mr. Crabtree's response. He contends that his request was misunderstood. He stated that his case was still in court and he was requesting to learn of the whereabouts of the guns and obtain access to them to enable him to test the Commonwealth's evidence and to otherwise assist in his ongoing case.
The issue presented in this appeal is whether the Franklin City Police Department violated the Open Records Act in its response to Mr. Reynolds' open records request. For the reasons that follow, we conclude that the Department properly denied his request as the requested records related to and are part of an ongoing enforcement action and, thus, are exempt under KRS 61.878(1)(h). By its express terms, that statute 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, 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 held KRS 61.878(1)(h) authorizes a law enforcement agency, such as a city police department or sheriff's department, to withhold its investigative files until the prosecution of a case is concluded, or a decision not to prosecute is made. 93-ORD-106. In 99-ORD-170, we stated the rationale for this exemption:
Nevertheless, this office has also recognized that the public's right to know that its law enforcement agencies are properly executing their duties must, in cases of ongoing investigations and cases in which enforcement action has not been completed, yield to the state's interest in insuring that investigations are not compromised, officers and informants are not imperiled, and prosecutions are brought to a successful conclusion. See, for example, OAG 76-424; OAG 83-356; OAG 85-93; OAG 86-47; OAG 87-15; OAG 90-64; OAG 92-46; 95-ORD-69; 99-ORD-93. In each of these decisions, the Attorney General held that records pertaining to a criminal investigation may be withheld pursuant to KRS 61.878(1)(h) until prosecution is completed, and that prosecution is not completed until the defendant's conviction 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).
Mr. Reynolds acknowledges in his letter of appeal that his case is still pending in the Court of Appeals. Mr. Crabtree advised that a Special Commonwealth's Attorney had been appointed to prosecute Mr. Reynolds' case.
Under the foregoing circumstances, the Department may withhold its investigative records until the prosecution of the case is concluded or a decision not to prosecute is made. Accordingly, we conclude the Department did not violate the Open Records Act in denying Mr. Reynolds' request for records relating to the ongoing litigation. KRS 61.878(1)(h). Once the prosecution is concluded or a decision is made not to prosecute, the Department would have to make those documents available for inspection unless "exempted by other provisions of KRS 61.870 to 61.884."
Moreover, in 97-ORD-93, this office has held that requests to inspect objects (tuning forks and the actual radar unit used) or information, and not records, do not fall within the purview of the Open Records Act. See also, OAG 85-61, in which we held the Department of Transportation properly denied a request to inspect merchandise listed on a bill of sale, as such were not "public records. " Thus, an open records request for a rifle or for information about a rifle would not come under the purview of the Open Records Act, as such is a request for an object or for information, and not a request to inspect a public record.
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.