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 Kentucky State Police violated the Kentucky Open Records Act in denying the request of Danny Shelley for the audiotape recording of his confession. By letter dated October 18, 2007, Mary Ann Scott, Official Custodian of Records, advised Mr. Shelley that his request could not be honored because there "is ongoing litigation pertaining to this matter." Citing OAG 83-356, Ms. Scott further explained that a "'criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken.' Consequently, this information is part of an investigation that remains open, identified as Kentucky State Police cases 11-02-0734 and 0744." In accordance with KRS 17.150(2) and KRS 61.878(1)(h), as well as a line of decisions issued by this office, the KSP denied Mr. Shelley's request; he initiated this appeal by letter dated October 22, 2007. Upon receiving notification of Mr. Shelley's appeal from this office, Emily Perkins, Commissioner's Office, responded on behalf of the KSP, advising that Mr. Shelley "currently has a case pending in the Court of Appeals (identified as case number 2006-CA-1281); and, there is a great likelihood for subsequent litigation." Accordingly, the KSP "respectfully requests that the precedent set forth in numerous opinions and open records decisions be applied to the instant appeal, affirming the [KSP's] denial. See OAG 83-356; 87-15; 90-143; 04-ORD-041; 04-ORD-114; 05-ORD-232; 05-ORD-246; 05-ORD-251; 06-ORD-203; and 07-ORD-041." Because this appeal presents no reason to depart from the cited line of decisions, the denial of Mr. Shelley's request is affirmed.
By invoking KRS 61.878(1)(h), and establishing that Mr. Miles' conviction is not final due to a pending appeal, the KSP 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. See 99-ORD-93. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open," as evidenced by prior decisions of this office dating back to 1976 (affirmed by the Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992)), 1 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." 04-ORD-114, pp. 9-10 (citations omitted). In our view, 04-ORD-234 and 04-ORD-114 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. To summarize, Mr. Shelley cannot access the records under the Open Records Act "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs, supra at 391; accord, 05-ORD-246 and 07-ORD-034.
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 In Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 339 (2005), the Supreme Court reaffirmed Skaggs, supra, in holding the "principles apply equally to all records in the litigation files of the Commonwealth's Attorney, regardless of origin."