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 violated the Open Records Act in denying Gleaner staff writer Frank Boyett's April 2, 2001, request for copies "of all records compiled by the Kentucky State Police in their investigation of former Henderson County Jailer Jackie S. Combest, which resulted in his indictment by the Henderson grand jury on May 5, 1998." For the reasons that follow, we affirm KSP's denial of Mr. Boyett's request.
In a response dated April 6, 2001, KSP records custodian Diane H. Smith denied Mr. Boyett's request, advising him that "this case is in active status." Relying on KRS 61.878(1)(l) incorporating KRS 17.150(2) into the Open Records Act, she explained that the latter provision "exempts law enforcement files or cases that have not been closed," and that the requested record "is an open investigation and is exempt from inspection. " On appeal, Mr. Boyett challenges KSP's position, noting that "there has been no prosecution of this case since December 23, 1998, when a pre-trial hearing was scheduled." He maintains that "there has been a de facto decision to not prosecute, " and the records should be disclosed.
In a supplemental response directed to this office following commencement of Mr. Boyett's appeal, Roger G. Wright, Kentucky State Police Legal Office, elaborated on KSP's position. Mr. Wright stated:
On April 16, 2001, undersigned counsel spoke with the Special Prosecutor assigned to the Combest matter and received written confirmation that the subject case is open. A copy of this correspondence is attached as Exhibit 3. The right of public inspection of criminal investigative reports pursuant to KRS 17.150(2) is contingent upon the completion of prosecution or a determination not to prosecute having been made. See OAG 90-64. See also OAG 83-481 (opining that police investigative records are not open for inspection until prosecution, including appeals from conviction, are final).
In support, Mr. Wright attached a letter prepared by Jay A. Wethington, Commonwealth's Attorney for the Sixth Judicial Circuit and "the Special Prosecutor assigned to the Combest matter," confirming that "the Jackie Combest case is an open case, and as such, is not subject to the Open Records law."
In an early open records opinion, the Attorney General analyzed the purpose underlying the exemption codified at KRS 17.150(2), and its "companion statute," KRS 61.878(1)(h), 1 observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2, citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). There, we recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, 2 or is finally closed." Nevertheless, the Attorney General reminded the law enforcement agency of the language found in KRS 17.150(3), echoed in KRS 61.878(1)(h), 3 which provides that "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." OAG 83-123, p. 2. The Attorney General concluded that the incident which prompted the investigation occurred two months before the records request was submitted, and that this office could not "say how long the police department should consider the case inactive before declaring it closed." Id.
In OAG 86-80, the Attorney General determined that in light of the admonition contained in KRS 17.150(3) and KRS 61.878(1)(h), a law enforcement agency could not properly rely on KRS 61.878(1)(h) and KRS 17.150(2) to shield from disclosure a case that had been maintained as "an open case (active or inactive as opposed to closed) for almost eight years." OAG 86-80, p. 4. Because the agency had not met the burden of proof imposed by law relative to a denial based on these provisions, this office held that "[i]t should either make the material available for inspection or it should set forth some other statutorily recognizable exception to public inspection . . . ." Id. Conversely, in OAG 90-143, we expressed our unwillingness "to say that one and one-half years is an unreasonable time to investigate [and prosecute] a case." Again recognizing that the burden is on the custodian of records to justify the refusal of inspection with specificity, we concluded that the law enforcement agency met this burden by invoking KRS 61.878(1)(h) and KRS 17.150(2), and establishing that the investigative records in dispute pertained to an open case. See also 96-ORD-25 and 96-ORD-27.
Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that investigative records maintained by law enforcement agencies may be withheld until prosecution is concluded or a determination not to prosecute has been made. Hence, "the right of public inspection set forth in KRS 17.150(2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute. " OAG 90-143, p. 4. Although some three years have elapsed since the grand jury indicted Jackie S. Combest, the special prosecutor in the case has confirmed that it is an open case. As evidenced in OAG 86-80, we concur with Mr. Boyett in his view that a public agency cannot indefinitely postpone access to investigative records by labeling an investigation open; however, as evidenced in OAG 90-143, we are not prepared to say that three years is an unreasonable time to investigate and prosecute a case. Having established that the disputed records consist of investigative reports maintained by a criminal justice agency, and that prosecution has not been completed, the Kentucky State Police did not abuse its discretion in invoking KRS 17.150(2) to shield those records from disclosure. Mr. Wethington has not indicated that he does not intend to prosecute the case, and no authority exists for the concept of a "de facto decision to not prosecute. " Accordingly, we affirm the actions of the Kentucky State Police.
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 17.150(2) provides in relevant part:
Intelligence 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. However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.
KRS 61.878(1)(h) provides, in relevant part:
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.
2 A case is deemed "inactive" when "no suspect has been determined and active investigation has ceased because the investigator can find no other trails to follow . . . ." OAG 83-123, p. 2.
3 The final sentence of KRS 61.878(1)(h) thus provides that "[t]he 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."