Request By:
Johnny Lee Bullock, # 07890-032
U. S. Penitentiary
P. O. Box 12015
Terre Haute, Indiana 47801Rick Stiltner
Official Custodian of Records
Commissioner's Office
Department of State Police
919 Versailles Road
Frankfort, KY 40601Roger Wright
Office of Counsel
Department of State Police
919 Versailles Road
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in denying Johnny Lee Bullock's October 22, 2005, request for documentation of "all money transactions for drug buys in the case of Johnny Lee Bullock" and "all audio recording's, statement's, and reports of any kind when it comes to Johnny Lee Bullock." Because these investigative records are part of an ongoing criminal case in which Mr. Bullock's underlying federal criminal conviction is not final, we affirm the KSP's denial of Mr. Bullock's request.
By letter dated November 1, 2005, Mary Ann Scott, Official Custodian of Records, KSP, responded to Mr. Bullock's request, received by the agency on October 27, 2005, advising him that the investigative records he sought were still part of an investigation that was still open and, thus, denied his request under authority of KRS 61.878(1)(h).
After receipt of notification of the appeal and a copy of the letter of appeal, Roger Wright, Assistant General Counsel, KSP, by letter dated January 5, 2006, provided this office with a response to the issues raised in the appeal. In his response, Mr. Wright advised:
This will serve as the response of the Department of State Police (KSP) to the above-referenced appeal. The criminal investigations which appellant seeks are still being carried in an open status due to the fact appellant's underlying federal criminal conviction relating to these investigations apparently is not final. It is KSP's understanding that the U. S. Court of Appeals for the Sixth Circuit remanded appellant's criminal case for resentencing in 2005 and, based upon the Department's inquiry with the U.S. Attorney's Office, that the resentencing process is not final at this time. Accordingly, KSP requests this appeal be denied.
In 04-ORD-234, this office addressed the issue of the nondisclosure of investigative records and reports in ongoing criminal cases. In that decision, we stated:
KRS 61.878(1)(l) authorizes public agencies to withhold:
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). 1 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 KSP states that the criminal case giving rise to this appeal remains open because the Sixth Circuit has remanded Mr. Bullock's case for resentencing and thus the criminal investigations he seeks are still being carried in an open status, as his underlying federal criminal conviction relating to these investigations is not final. 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 documentation of "all money transactions for drug buys" and "all audio recording's, statement's, and reports" in the case of Johnny Lee Bullock remain exempt until prosecution is completed. Accord, 99-ORD-93; 03-ORD-123; 04-ORD-129. We therefore affirm the KSP's denial of Mr. Bullock'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 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.