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 Kentucky State Police (KSP) properly relied on KRS 61.878(1)(h) and KRS 17.150(2) in denying George T. Parrish's February 22, 2005, request for copies "of all of the records of the investigation concerning the theft of money and medication from [his] residence . . . [that] occurred on February 15, 2004, in mid-afternoon." 1 For the reasons that follow, we affirm KSP's denial of Mr. Parish's request but remind the agency of its duty to "justify the refusal of inspection with specificity" and to avoid invocation of these provisions "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
In a response to Mr. Parish's request dated February 28, 2005, KSP records custodian Debborah Arnold advised Mr. Parish that the requested records are "considered part of an investigation that is still open" and denied his request on the basis of KRS 61.878(1)(h). Although Ms. Arnold suggested that Mr. Parish "check with the Post 2 Records Clerk . . .to see if the case has been closed" before submitting another request, she did not elaborate on the agency's basis for denial.
Shortly thereafter, Mr. Parish initiated this appeal noting in the record on appeal that he "was told by Detective Doug Jones that he would provide these records in their entirety after one year. " 2 In supplemental correspondence directed to this office following commencement of that appeal, Justice and Public Safety Cabinet Assistant General Counsel Roger Wright explained that "KSP denied Parish's request for this open investigation . . . [and] maintains that these records are currently exempt from disclosure pursuant to KRS 17.150(2) and KRS 61.878(1)(h)." Mr. Wright did not amplify on this statement. Consistent with a line of authorities dating back to 1983, we affirm KSP's denial of Mr. Parish's request.
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), 3 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, 4 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), 5 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 while the investigation is proceeding and 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 Mr. Parish received assurance that records relating to the investigation of the incident that occurred in his home would be available for inspection within one year of the incident, KSP has confirmed that the investigation remains open. As evidenced in OAG 86-80, we believe 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 one year is an unreasonable time to investigate and/or prosecute a case. Having established that the disputed records consist of investigative records maintained by a criminal justice agency, we find that the Kentucky State Police did not abuse its discretion in invoking KRS 17.150(2) and KRS 61.878(1)(h) to shield those records from disclosure. Accord, 01-ORD-85; 04-ORD-114. In so holding, we remind KSP that denial of inspection of investigative records must be justified with specificity and that these exceptions should not be invoked for the purpose of delaying or impeding the exercise of rights granted by KRS 61.870 to 61.884. Specific information as to why the investigation is considered open, or what harm would flow from disclosure of the records, may be appropriate where, as here, KSP apparently made a commitment to release records to the requester within one year.
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.
George T. Parish3000 SR 2839Dixon, KY 42409
Debborah ArnoldCustodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightOffice of CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 In a separate request dated February 22, Mr. Parish asked that KSP return the 357 Magnum revolver that was removed from his home on February 15, 2004, by KSP officials. Because a revolver is not a public record within the meaning of KRS 61.870(2), issues relating to the restoration of a revolver to its owner are not an appropriate subject for review by the Attorney General in an open records appeal. We therefore decline to render a decision on this subject.
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2 Parish open records request of February 22, 2005.
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3 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) authorizes nondisclosure of:
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.
4 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.
5 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."
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