Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of State Police violated the Open Records Act in denying The Ledger Independent' s October 22, 2004, request for copies of "audio and videotapes made during the investigation of the December 16, 2002, murders of Ryan Matchison and Adam Harvey . . . [specifically tapes of all interviews with Russell Malapelli, Ronald Kirk, Douglas Baker, and Dawn Duffy." For the reasons that follow, we affirm the Department's denial of The Ledger Independent' s request.
In her request, Ledger Independent reporter Betty Coutant explained:
It has been more than one year since all four of the accused were sentenced and the possibility for appeals is over. Commonwealth's Attorney Stockton Wood, the prosecutor in the case, tells us he sees no reason Kentucky State Police should not release these portions of the investigation.
In response, Department of State Police Records Custodian Deborrah M. Arnold advised that the requested "information is part of an investigation that is still open," and denied The Ledger Independent' s request on the basis of KRS 61.878(1)(h). Shortly thereafter, The Ledger Independent initiated this appeal, reiterating that the Commonwealth's Attorney informed the newspaper that "it is too late for an appeal and that he sees no reason why the evidence should continue to be withheld from the media and citizens of Kentucky." 1 Ms. Coutant questioned "how [the Department] can define the investigation as still 'open' when all four defendants are in jail."
In supplemental correspondence directed to this office following commencement of The Ledger Independent' s appeal, Justice and Public Safety Cabinet Assistant General Counsel Roger Wright amplified on the Department's position. He stated:
The undersigned has consulted with the cognizant Commonwealth's Attorney who advised that there is a post-trial motion (to destroy evidence) pending, as well as the possibility of collateral attack on the judgments of conviction. A copy of correspondence to this effect is attached for your review.
In the attached correspondence, Commonwealth's Attorney Wood acknowledged that in response to an earlier request for information from the pertinent criminal file, he advised The Ledger Independent that he "didn't see any reason not to close the case and make information available under open records once the defendant were sentenced. " Continuing, Mr. Wood noted that after making "a motion to allow the [Department of] State Police to dispose of evidence in the case," he learned:
that one or more of the defendants were considering filing a motion to overturn the conviction based upon ineffective assistance of counsel under RCr 11.42. Since the defendants appear to have three years after sentencing to file under RCr 11.42, perhaps it would be better not to close your file until the three years has elapsed.
On this basis, Mr. Wright asserted that "these reports are not currently releasable pursuant to KRS 61.878(1)(h) and KRS 17.150(2)." 2 We find that the arguments advanced by the Department of State Police are fully supported by law.
KRS 61.88(1)(l) authorizes 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.
This provision operates in tandem with KRS 17.150(2) to exclude from public inspection "intelligence and investigative reports maintained by criminal justice agencies . . . [until] prosecution is completed or a determination not to prosecute has been made." The term "intelligence and investigative reports" is, in our view, broad enough to extend to audio and video tapes containing interviews with the participants in the criminal act giving rise to the investigation. Based on a line of opinions dating back to 1976, and affirmed by the
Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), we conclude that the disputed tapes may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
It is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 17.150(2) as well as KRS 61.878(1)(h). 3 See e.g., OAG 76-424; OAG 82-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69. Thus, in OAG 83-356, we stated that a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken. OAG 83-356, citing
Cornett v. Judicial Retirement and Removal Commission, Ky., 625 S.W.2d 564 (1982). These decisions were premised on the notion that if a criminal case is on appeal, the possibility exists of a remand for a new trial, and for this reason the prosecution is not completed.
In 1992, the Kentucky Supreme Court affirmed this position. In Skaggs v. Redford, above, the Court considered whether the Commonwealth's defense of a collateral attack on a criminal conviction is part of the prosecution of the criminal case. The Court concluded that it was, reasoning that "the State's interest in prosecuting [a convicted criminal] is not terminated until his sentence is carried out." Skaggs at 390. The Court specifically rejected the argument that this interpretation of the law was "unduly harsh, because it means the more serious the criminal conviction and sentence the longer the convicted criminal's file will remain closed." Id. at 391. Instead, the Court expressed its confidence in "the judicial rules of practice and procedure that apply to [criminal] cases[s] . . . [and that] require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id.
The Department of State Police asserts that the criminal case giving rise to this appeal remains open at the request of the Commonwealth's Attorney because the defendants have indicated that they are actively considering an RCr 11.42 motion based on ineffective assistance of counsel. 4 This brings the case within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h) as construed in Skaggs v. Redford, above, and audio and video taped interviews with the participants in the criminal act remain exempt until prosecution is completed. Accord, 99-ORD-93; 03-ORD-123; 04-ORD-129. We therefore affirm the Department's denial of The Ledger Independent' s open records 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.
Footnotes
Footnotes
1 The Ledger Independent also stated that "[a]n appeal by another newspaper was denied by the last Attorney General about one year ago," but expressed the hope that this office would reach a different outcome in the instant appeal. Our search for an earlier open records decision arising from these facts yielded no results.
2 KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
3 KRS 61.878(1)(h) excludes from public inspection:
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.
4 At page 390 of Skaggs, the Supreme Court answered in the affirmative the question whether the prospect of a federal habeas corpus action, that was "under active consideration by the appellant's post-conviction counsel," qualified as "prospective law enforcement action, " concluding that "[a] common sense approach dictates that the defense of the prospective habeas corpus proceeding is part of the law enforcement action . . . ."