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 violated the Open Records Act in denying James Clemons' September 20, 2005, request for all reports, tests, and documentation relating to case number 7-02-1328, 7-02-1375, and 7-02-1376. For the reasons that follow, and upon the authorities cited, we affirm KSP's denial of Mr. Clemons' request.
By letter dated September 22, 2005, KSP's Official Custodian of Records, Rick Stiltner, responded to Mr. Clemons' request. Relying on KRS 61.878(1)(h), he advised that the requested records are "part of an investigation that is still open" and therefore excluded from public inspection. Shortly thereafter Mr. Clemons initiated this appeal, noting that he was sentenced on February 23, 2004, and questioning how the case "can . . . still be open . . . ." He noted that he "need[ed] these records to perfect [his] 11.42 Motion that [he is] preparing. "
In supplemental correspondence directed to this office following commencement of Mr. Clemons' open records appeal, Sgt. L. Scott Miller elaborated on KSP's position. He explained that KSP case number 07-02-1328, 1375, and 1376 "remain open due to the fact that there has not yet been a final disposition of Clemons' appeal of right to the Supreme Court, docket number 2004-SC-000261." On this basis Sgt. Miller reaffirmed that "Mr. Clemons' [request] was properly denied pursuant to KRS 61.878(1)(h) as well as 17.150(2)." In support, he cited 04-ORD-234 affirming KSP's denial of a request for interview tapes contained in its criminal investigation file where an RCr 11.42 appeal was threatened. We find that the arguments advanced by KSP 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) 1 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 laboratory, forensic, and other reports generated in the course of an investigation. Based on a line of opinions dating back to 1976, affirmed by the Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), and reaffirmed by the Kentucky Supreme Court in June 2005, in the case of Bowling v. Lexington-Fayette Urban County Government, Ky., S.W.3d (2005), 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). 2 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, the Attorney General 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. As noted, these principles were reaffirmed in June of this year in the case of Bowling v. Lexington-Fayette Urban County Government, above, holding that the trial court properly quashed subpoenas for records in the custody of the Commonwealth's Attorney and Attorney General because the records were protected from disclosure by KRS 61.878(1)(h).
KSP asserts that the criminal case giving rise to this appeal remains open because there has been no final disposition of Mr. Clemons' appeal of right to the Supreme Court. Mr. Clemons acknowledges that he is preparing an 11.42 motion and that the records are needed for this purpose. The potential harm to KSP is predicated upon the agency's reluctance to close the case and dispose of evidence that may be needed in further court proceedings. 03-ORD-123, p. 3. This brings the disputed records squarely within the parameters of KRS 61.878(1)(h) as well as KRS 61.878(1)(l), incorporating KRS 17.150(2) in the Open Records Act. Accord, 99-ORD-93; 03-ORD-123; 04-ORD-129; 04-ORD-234; 05-ORD-211. The requested records may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391. We find no error in KSP's disposition of Mr. Clemons' 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 KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
2 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.