Request By:
Mike Loizzo
Southern Illinois University
1048 Communications Bldg.
Carbondale, IL 62901-6602Dan L. Sims
Coroner
301 S. 6th Street
Paducah, KY 42003-1700Daniel Y. Boaz
McCracken County Attorney
301 S. 6th Street
Paducah, KY 42003
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 McCracken County Coroner violated the Open Records Act in the disposition of WSIU-FM News Producer Mike Loizzo's January 5, 2001, request for a copy of "the final autopsy report on Jerry Isom." Mr. Loizzo did not receive a response to his request, prompting him to initiate this appeal. For the reasons that follow, we conclude that although the coroner's disposition of Mr. Loizzo's request was procedurally deficient, his denial of the request was substantively correct.
In a response directed to Mr. Loizzo following commencement of this appeal, Coroner Dan L. Sims explained that "[c]riminal proceedings are still pending in the State of Illinois." Mr. Sims indicated that he had so advised Mr. Loizzo "verbally via telecommunication," believing that this "would suffice." In closing, he advised Mr. Loizzo that he would be permitted to inspect the autopsy report "when the criminal proceedings have been closed." Although we believe that Mr. Sims properly resisted disclosure of the autopsy report while criminal prosecution is pending, we find his response deficient in several respects.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It is incumbent on every public agency to discharge its duties under KRS 61.880(1) by issuing a written response to a request for records within three business days of receipt, and, if all or any part of the request is denied, to cite the exception authorizing nondisclosure and explain its application to the record withheld. To the extent that the McCracken County Coroner failed to respond in writing, and in a timely fashion, to Mr. Loizzo's request, and to cite a statutory basis for denying access, his disposition of the request was improper. We urge the coroner to review the cited provisions to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we affirm Mr. Sims' denial of Mr. Loizzo's request for the final autopsy report on Jerry Isom based on the existence of ongoing criminal prosecution related to this death. In a line of open records opinions dating back to 1982, the Attorney General has recognized that a coroner may withhold an autopsy report on the basis of KRS 61.878(1)(h) while criminal prosecution is contemplated or in progress. OAG 82-458, OAG 83-223; OAG 91-6; 94-ORD-84; 97-ORD-81. KRS 61.878(1)(h) authorizes 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.
Only after criminal prosecution is concluded must the autopsy report be produced for public inspection. Moreover, KRS 17.150(2), incorporated into the Open Records Law by operation of KRS 61.878(1)(l), 1 has been deemed to authorize nondisclosure of an autopsy report while criminal prosecution is pending. That provision provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." OAG 91-6; 97-ORD-81.
We believe that the cited authorities are controlling. Although he did not cite the exceptions authorizing nondisclosure, Mr. Sims advised Mr. Loizzo that the autopsy report was not available for inspection while criminal prosecution was pending, but that the he would be permitted to inspect the report when the prosecution was concluded. We affirm his denial of Mr. Loizzo's request on this basis.
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 proceedings.
Footnotes
Footnotes
1 KRS 61.878(1)(l) requires 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.