Request By:
Martha Farmer Copeland
Freeman, Copeland & Childers
P.O. Box 1546
Corbin, KY 40702-1546Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601James Herrick
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
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 (KSP) denial of Martha Farmer Copeland's request for a copy of photographs taken of an incident on June 23, 2002, involving Ray Partin and Wilda Jean Partin in KSP cases # 11-02-1264 and 1265. Ms. Copeland represents Ms. Partin in a civil action.
By letter dated August 1, 2002, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, relying upon KRS 61.878(1)(l) and KRS 17.150(2), denied Ms. Copeland's request, stating the photographs she sought were part of open cases and are exempt from inspection under the cited statutes.
After receipt of Ms. Copeland's letter of appeal, Ms. Smith, by response to this office dated September 8, 2002, advised that, as of that date, the investigation remained active, that the cases were ongoing, and that the photographs were considered part of the official case file and would not be released until the case file is closed.
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 KSP case file is not open for inspection while the investigation is ongoing. 95-ORD-15, 93-ORD98, OAG 91-8, and OAG 90-143. Accordingly, it is the decision of this office that the KSP properly denied Ms. Copeland's request for the photographs in the KSP's investigative files 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.
Ms. Copeland indicates that the photographs are needed for use in her client's civil action. 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 KSP properly denied Ms. Copeland's 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.