Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Michael J. Curtis' request for a copy of photographs taken in reference to Kentucky State Police cases # 14-99-1840 and # 14-99-1841.
By letter, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, relying upon KRS 61.878(1)(l) and KRS 17.150(2), denied Mr. Curtis' request, stating the photographs he sought were part of open cases.
After receipt of Mr. Curtis' letter of appeal, Ms. Smith, by response to this office dated December 8, 2000, advised that, as of that date, the investigation remained active, that the cases were ongoing, that the photographs were an integral part of the investigation and official files, and thus exempt under authorities cited in its original response.
For the reasons that follow, it is the decision of this office that the Kentucky State Police acted consistently with the Open Records Act in denying access to the requested records.
KRS 61.878(1)(l) provides in pertinent part:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction;
. . .
(l) 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) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute has been made.
This office has stated in numerous past opinions that a Kentucky State Police case file is not open for inspection while the investigation is ongoing. 95-ORD-15, 93-ORD-98, OAG 91-8, and OAG 90-143. Accordingly, it is the decision of this office that the KSP properly denied Mr. Curtis' request for the photographs in the Kentucky State Police's investigative file on the basis that the investigation was still open and ongoing. The agency's denial is in accord and consistent with KRS 61.878(1)(l) and KRS 17.150(2).
Once the investigation and legal action have been completed or a decision has been made to take no legal action, the records requested will be subject to public inspection unless excluded by another applicable statutory exception to the right of public inspection. OAG 90-143.
Mr. Curtis indicates that the photographs pertain to the pending criminal action, Commonwealth of Kentucky v. Johnny B. Lawson, Carter Circuit Court, Indictment No. 00-CR-00017. In that regard, this office has held that the Open Records Act was not intended to be used as a substitute for discovery procedures. 93-ORD-37. "Requests under the Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, at p. 3. It is therefore not the Attorney General's duty to determine whether records would be discoverable in a civil or criminal action. We are limited in our review to deciding whether the Kentucky State Police properly denied Mr. Curtis' open records request. It is the opinion of this Office that the agency's actions were entirely consistent with the Open Records Act.
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.
Michael J. Curtis1544 Winchester AvenueP.O. Box 1455Community Trust Bank Building, Suite 1008Ashland, KY 41105-1455
Diane H. SmithOfficial Records CustodianKentucky State Police919 Versailles RoadFrankfort, KY 40601
Elizabeth BakerKentucky State Police919 Versailles RoadFrankfort, KY 40601