Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of Carlton Foley for copies of specified investigative reports and any information related to Indictment Number 97-CR-009. Relying upon KRS 61.878(1)(h), Rick Stiltner, Official Custodian of Records, denied Mr. Foley's request because the requested records and information are "part of an investigation that is still open." In our view, 04-ORD-114, a copy of which is incorporated hereto and incorporated by reference, is determinative as to the sole issue presented by this appeal.
Noticeably absent from the initial response of the KSP is any reference to KRS 17.150(2) and a brief explanation of how KRS 61.878(1)(h) applies to the records withheld; to this extent the KSP violated KRS 61.880(1). However, the supplemental response of the KSP contains both as well as the requisite showing of harm pursuant to KRS 61.878(1)(h). "Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made." 04-ORD-114, p. 9. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open" or "ongoing," as evidenced by prior decisions of this office, the Attorney General has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed." Id. (Citations omitted). Because the instant appeal presents no reason to depart from governing precedent, this office affirms the denial by the KSP of Mr. Foley's request on the basis of KRS 61.878(1)(h).
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.
Carlton Foley, # 128852Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311-0900
Rick StiltnerOfficial Custodian of RecordsCommissioner's OfficeKentucky State Police919 Versailles RoadFrankfort, KY 40601
Brenn O. CombsStaff AttorneyOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601