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 Cadiz Police Department violated the Kentucky Open Records Act in denying the request of Robert Nelson to receive a copy of "Any and all reports concerning a vehicle pursuit initiated near the Crop Production Services on Hopkinsville Road on or about 2 March 2006." Citing KRS 61.878(1)(h), the CPD denied Mr. Nelson's request, correctly advising Mr. Nelson that upon "completion of enforcement action the record will become open." Upon receiving notification of Mr. Nelson's appeal from this office, Hollis L. Alexander, Chief of Police, supplemented his response on behalf of the CPD; attached to Chief Alexander's response is a copy of the media release upon which Mr. Nelson relies in arguing that the Cadiz Record "was allowed to receive this report and publish it." In short, the evidence of record refutes this position; Chief Alexander clarifies that a copy of the media release was provided to the Cadiz Record but the files were not made available to his knowledge. According to Chief Alexander, the CPD "still considers cases 06-C-03-117, 118 and 119 all to be open and active." At this time, "there are possible arrests to be made, leaving the case in an active stage." Although the CPD failed to cite KRS 17.150(2), the response of the CPD is otherwise adequate.
In our view, 04-ORD-041 and 04-ORD-114, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. By invoking KRS 61.878(1)(h) and expressly indicating that the requested records concern an open investigation, the CPD satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c). 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 and active," 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).
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.
Robert Nelson1199 Old Hopkinsville RoadCadiz, KY 42211
Hollis L. AlexanderChief of PoliceCadiz Police DepartmentP.O. Box 1667Cadiz, KY 42211
James R. Redd, IIICity AttorneyP.O. Box 1107Hopkinsville, KY 42241