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 properly relied on KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(1), 1 in denying Gayle E. Slaughter's March 17, 2003 request for records relating to the DNA profiling of her client, Keith Guy. 2 For the reasons that follow, we find that KSP properly relied on the cited confidentiality provision and affirm its denial of Ms. Slaughter's request.
In her March 17 records application, Ms. Slaughter requested "access to the originals, and one true copy" of:
3. The DNA Profile record and report for the Keith Guy convicted offender sample # 93-6-00111 that is referenced in Laboratory Report No. 00-0-05890 at the bottom of the page . . . and the records retention policy relating to same.
4. State Police Laboratory Technician's handwritten laboratory notebook records for DNA Profile record and report for the Keith Guy convicted offender sample # 93-6-00111 . . . that is referenced in Laboratory Report No. 00-0-05890.
5. Each record and report showing the DNA Profile Control sample run simultaneously for the DNA Profile for the Keith Guy convicted offender sample # 93-6-00111 . . . that is referenced in Laboratory Report No. 00-0-05890).
6. Each record and report showing Keith Guy's DNA Profile in the Kentucky State Police Forensic Casework and Convicted Offender Indexes.
On March 19, 2003, KSP's Official Custodian of Records Diane H. Smith denied these requests on the basis of KRS 61.878(1)(i) and KRS 17.175(4). She explained that the laboratory technician's handwritten notes relating to Mr. Guy's DNA profile are preliminary in nature, do not reflect final agency action, and are therefore excluded from public inspection by KRS 61.878(1)(i). In denying Ms. Slaughter's request for Mr. Guy's DNA profile, the control sample report, and his record in the Casework and Convicted Offender Index, Ms. Smith invoked KRS 17.175(4), asserting that the provision "mandates that the records produced from the samples shall be used only for law enforcement purposes and shall be exempt from the provisions of KRS Chapter 61."
Shortly after she received KSP's response to her request, Ms. Slaughter initiated this appeal. She maintained:
1. My request number 4 for ". . . lab technician's handwritten lab notebook records . . ." should not be denied pursuant to KRS 61.878(1)(i) because such record is actually the final report from which typewritten records are prepared. As the original final report, I am entitled to the material to compare against the typewritten record.
2. Additionally, a criminal prosecution is still on appeal, and the Commonwealth was required to produce this material at the trial of the matter pursuant to RCr 7.24 and 7.26, and failed to do so.
3. It is my position that, as counsel for Keith Guy, investigating his conviction which is on appeal, the records in requests 3, 4, 5, and 6 of my March 17 letter are being sought for quote "law enforcement purposes" and must therefore be released pursuant to KRS 17.175(4).
(Emphasis in original.) In sum, Ms. Slaughter argued, "KSP has no legal standing to deny access to any of the requested material." Respectfully, we disagree.
In supplemental correspondence directed to this office following commencement of Ms. Slaughter's appeal, KSP Legal Counsel James M. Herrick elaborated on the agency's position. Rejecting Ms. Slaughter's argument that the handwritten notes are equivalent to the final report, he observed:
If this argument were accepted, it would vitiate the exemptions for "preliminary drafts" and "notes" under KRS 61.878(1)(i), since final documents are inevitably prepared from preliminary drafts or notes. The statute distinguishes between a final document, on the one hand, and preliminary drafts or notes, on the other; the latter are exempt from disclosure while the former is not. Handwritten lab notes are not used as final lab reports in the Kentucky State Police Forensic Services Division.
More importantly, however, in this case, no "report" was created from a lab technician's notes in connection with the DNA profile record for Keith Guy, convicted offender sample # 93-6-00111. The final record generated with the use of such notes would have been the computerized DNA profile in the Kentucky State Police database. Furthermore, both this DNA profile and the lab technician's notes associated with it are records produced from DNA samples, and are therefore exempt from the provisions of KRS Chapter 61, pursuant to KRS 17.175(4).
In response to Ms. Slaughter's argument that the lab notes should have been produced by the prosecutor in Mr. Guy's criminal trial, Mr. Herrick asserted that this question should be addressed by the appellate court and not by this office in the context of an open records appeal. He noted that neither KSP nor the Attorney General "is responsible for the compliance of a prosecuting attorney with the Rules of Criminal Procedure."
With reference to Ms. Slaughter's argument that as an attorney representing a convicted offender in a criminal appeal she is entitled to Mr. Guy's DNA profile records under KRS 17.175(4), Mr. Herrick concluded:
KRS 17.175(4) states: "Records produced from [DNA] samples shall be used only for law enforcement purposes and shall be exempt from the provisions of KRS Chapter 61." Ms. Slaughter argues that she is requesting these records for "law enforcement purposes" . . . .
KRS 17.175(4) contains two clauses. The first clause states that records produced from DNA samples "shall be used only for law enforcement purposes." The second clause states that records produced from DNA samples "shall be exempt from the provisions of KRS Chapter 61." Neither of these clauses compels disclosure of these records to anyone; rather, both clauses impose restrictions on their use or dissemination. The records are explicitly made exempt from KRS Chapter 61, regardless of the purposes for which they are requested.
Accordingly, it is not necessary to argue whether representing a convicted offender in an appeal is a "law enforcement purpose." The first clause of KRS 17.175(4) simply restricts the use to which these records may be put by those already in possession of them. The second clause, in conjunction with KRS 17.175(7), prohibits their dissemination to anyone else for non-law-enforcement purposes.
It was his position that the records identified in requests three through six "are exempted from KRS Chapter 61 . . . ." We agree.
Acknowledging that there is a paucity of available legal authority to guide us in resolving this issue, we find that the interpretation of KRS 17.175(4) which KSP advances "effectuates the plain meaning and unambiguous intent expressed in the law."
Bob Hook Chevrolet Isuzu v. Commonwealth of Kentucky, Transportation Cabinet, Ky., 983 S.W.2d 488, 492 (1958) cited in
J.D.K. v. Commonwealth, Ky. App., 54 S.W.3d 174, 175 (2001). In the latter opinion, the Kentucky Court of Appeals examined the origin of the statute establishing the centralized database for DNA identification records in Kentucky, observing:
All fifty states and the federal government have enacted DNA database legislation in some form or another. See Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (Mass. 1999); Anno. Validity, Construction, and Operation of State DNA Database Statutes, 76 ALR5th 239 (2000). The Kentucky General Assembly established a DNA database in 1992 when it enacted KRS 17.170 and 17.175. Our legislature expressed its purpose in creating and maintaining a DNA database as follows:
KRS 17.175(2).
Id. In enacting KRS 17.170 and 17.175, the General Assembly determined that that purpose could best be served by establishing a broadly worded confidentiality provision in the law that extends to any "[r]ecords produced from samples" received from the Department of Corrections in compliance with KRS 17.170 and 17.175, and samples from other sources, and prohibiting disclosure of those records for any purpose other than "law enforcement purposes." The General Assembly emphasized its commitment to insuring the confidentiality of these records, and the information they contain, by enacting KRS 17.175(7), providing that "[a]ny person who disseminates, receives, or otherwise uses or attempts to use information in the database, knowing that such dissemination, receipt or use is for a purpose other than authorized by law, shall be guilty of a Class A misdemeanor."
The records to which Ms. Slaughter seeks access in requests three through six are "[r]ecords produced from samples" which fall squarely within the prohibition on disclosure codified at KRS 17.175(4). This being the case, we see no reason to unnecessarily lengthen this decision with additional analysis. She is foreclosed from accessing these records under Chapter 61 of the Kentucky Revised Statutes.
We fully concur with KSP in the view that resolution of questions of access under "the judicial rules of practice and procedure that apply to [criminal] cases" rests with the courts, and we decline the invitation to invade the judicial prerogative.
Skaggs v. Redford,, Ky., 844 S.W.2d 389, 391 (1992). Here, as in Skaggs, we reject the argument that our interpretation of the law is "unduly harsh," and instead express our confidence in those rules of practice and procedure that "require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id. Whatever her status as the attorney representing Mr. Guy in the appeal of his criminal conviction, Ms. Slaughter stands in the same shoes as any other open records requester under Chapter 61 of the Kentucky Revised Statutes, and KRS 17.175(4) bars her access to "records produced from the samples" collected for DNA testing, including Mr. Guy's DNA profile record and report, the technician's handwritten notes relating thereto, control sample report, and record and report in the Casework and Convicted Offender Indexes. Accordingly, we affirm KSP's denial of her request.
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.
Gayle E. SlaughterAttorney at Law453 Ohio StreetLexington, KY 40508
Diane H. SmithOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
James HerrickLegal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 Ms. Slaughter also requested records retention policies for DNA profiles and "records and reports relating to the actual lab samples that were tested to create the DNA profiles . . . ." KSP honored this request and access to these records is not at issue in this appeal.