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 Mr. David Greene's request for a copy of the KSP laboratory report of the substance found in his cell. For the reasons that follow, we find that the KSP's denial did not violate the Open Records Act.
By letter, dated January 27, 2003, 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. Greene's request, stating the requested lab report he sought # 02-0-10419 was part of KSP case # 15-02-1463, which is still considered active by the agency.
After receipt of Mr. Greene's letter of appeal, James M. Herrick, Legal Counsel, KSP, by response to this office dated February 28, 2003, advised that as of that date, the requested record was part of an open and active criminal investigation file of the KSP and the requested report was, 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 report.
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. Greene's request for the Kentucky State Police's laboratory report in this matter 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
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.