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 the request of Lewis Davenport for a copy of "the Criminal Complaint Affidavit filed in Uniform Citation Case No. 11-01-0049 and/or Case No. 01-CR-006 that was filed in McCreary Circuit Court," on the basis of KRS 17.150(2) and KRS 61.878(1)(h), since the case remains open due to pending litigation. Because the requested record is part of an ongoing criminal case in which the appellate process is not final, we affirm the KSP's denial of Mr. Davenport's request.
In his letter of appeal, dated February 1, 2007, Mr. Davenport stated that he had submitted an open records request to a Kentucky State Police Detective located at Post 11, London, Kentucky, and had yet to receive a response to his request. He stated that the information he was seeking had potential use in his case in showing ineffective assistance of trial counsel, abuse of discretion, prosecutorial misconduct, etc.
Upon receipt of notification of the appeal, Lt. Scott Miller, Commissioner's Office, KSP, provided this office with a response to the issues raised in the appeal. Addressing Mr. Davenport's contention that KSP had failed to respond to his request, Lt. Miller explained that Mr. Davenport had sent the request to the local post rather than directly to the Open Records Custodian; and this hampered KSP's ability to file a timely response to his request. Lt. Miller advised that by letter dated February 5, 2007, KSP notified Mr. Davenport that his request was denied because it related to an open murder investigation. Addressing the substantive issue raised in the appeal, Lt. Milled advised, in relevant part:
Mr. Davenport's request is for information from an investigation that is still open. For that reason Davenport's request has been denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2). This case remains open due to the fact of a pending appeal by Mr. Davenport as evidenced by letter to your office dated February 1, 2007. If a criminal case is on appeal, records pertaining to the case are exempt from disclosure under this provision. OAG's 76-424; 91-91; 86-47; 87-15; 82-356; 92-46. Surely the Commonwealth's interest in ensuring the full prosecution of criminals would be thwarted if cases were closed for the purposes of satisfying the Open Records Act.
If there is the possibility of an appeal it is of utmost importance that the case remains open. A closure of the case would result in destruction of evidence associated with the case. If an appeal is successful it is likely to result in a new trial. If the case has been closed and evidence destroyed the successful prosecution at the new trial would be futile and likely unsuccessful. The Supreme Court has found "so long as the possibility of further judicial proceedings in this case remains a significant prospect" the records may be properly withheld. Skaggs v. Redford, KY., 844 S.W.2d 389 (1992). The Kentucky State Police has a responsibility to the citizens of the Commonwealth to diligently pursue and prosecute criminals who have been accused of crimes.
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.
KSP advised that Mr. Davenport's request is for a record or information from an investigation that remains open due to pending litigation, in which the appellate process is not final. Mr. Davenport admits as much in his letter of appeal. 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 they remain exempt until prosecution is completed. Accord, 04-ORD-129; 04-ORD-234. We therefore affirm the KSP's denial of Mr. Davenport's open records request.
The KSP states that its ability to file a timely response to Mr. Davenport's request was hampered by the fact that his request was sent to the local post rather than directly to the Open Records Custodian. To the extent the request was sent to the wrong address, the KSP's untimely response was mitigated by its prompt response to Mr. Davenport's request after its receipt at the proper address. If a request is received at the wrong address, the agency should have timely responded to the requester either by notifying him as to the proper address to submit his request or by making arrangements to forward the request to the appropriate custodian for a timely response. KRS 61.872(4) and (5).
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.