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 Danny Lee New's request for a "copy of the video tape, recorded from Detective George Atwood's police cruiser on January 29, 2005, on or after 6 p.m. in Casey County, KY, in regards to the arrest of Danny New, and the search of his vehicle." Because this investigative record is part of an ongoing direct appeal on a criminal conviction, in which Mr. New is seeking to obtain post-conviction relief from that underlying conviction and, thus, is not final, we affirm the KSP's denial of Mr. New's request.
By letter dated December 7, 2007, Mary Ann Scott, Official Custodian of Records, KSP, denied Mr. New's request, advising:
Your request for audio and video recordings from the "dash-cam" is denied in accordance with KRS 61.878(1)(l) and 189.100(2), which states that release of recordings taken from police cruisers shall only be used for official purposes through a court of law. OAG 89-65; 93-ORD-037; and 05-ORD-251 affirm that the Open Records Act was not intended to be used as a substitution for discovery procedures. "Requests under the Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, at p. 3.
By letter of appeal, dated April 2, 2007, Mr. New initiated the instant appeal.
After receipt of notification of the appeal, Roger Wright, Office of Legal Services, KSP provided this office with a response to the issues raised in the appeal. In his response, Mr. Wright advised:
Appellant Danny Lee New seeks review of the denial of his open records request for a copy of the dash-cam video recording related to his arrest on or about January 29, 2005. As stated in KSP's denial correspondence of December 7, 2006, the requested tape is part of an investigation that remains open at this time. New states in his appellate correspondence dated [April 2], 2007, that he seeks this recording in furtherance of his efforts to appeal his criminal conviction. Accordingly, there appears to be no dispute that further proceedings are likely in regard to the requested record and, therefore, New's request was properly denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2). Further, as stated in KSP's denial correspondence, the requested video is further exempt from disclosure pursuant to KRS 189A.100.
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.
Because these investigative records are part of an ongoing collateral attack on a criminal conviction, in which Mr. New is seeking to obtain post-conviction relief from that conviction and, thus, 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 the requested records 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. New's open records request. Because the foregoing is dispositive of this appeal, we need not address other basis relied upon by KSP in its denial of the 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.
Danny Lee New, # 193691Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Mary Ann ScottOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601
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.