Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Reformatory violated the Kentucky Open Records Act in failing to respond upon receipt of three separate requests allegedly made by William J. Wells on July 31, 2008. Upon receipt of Mr. Wells' appeal, Staff Attorney Leigh K. Meredith, Department of Corrections, responded on behalf of KSR, advising that Mr. Wells "not only failed to follow the open records submission process set forth in CPP 6.1 in requesting copies of records, he also failed to submit the required Authorization to Use Inmate Account Form in order to pay for the requested records." As a result, KSR Open Records Coordinator Laura Vestal did not receive the requests, and "KSR did not violate the Open Records Act." In so arguing, Ms. Meredith relies upon 06-ORD-078, which validates her position regarding application of CPP 6.1. In our view, the analysis contained in 04-ORD-004 and 06-ORD-078 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Assuming that Mr. Wells properly resubmits the requests, KRS 197.025(2) authorizes KSR to withhold any responsive documents which do not contain a "specific reference" to him, as KSR correctly argues on appeal. With regard to application of KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the analysis contained in 04-ORD-076 is controlling; a copy of that decision is attached hereto and incorporated by reference.
To the extent any existing record in the custody of KSR which is responsive to Mr. Wells' request for a specified "Auditor's Report" was compiled in the process of the ongoing criminal investigation by the Kentucky State Police, and premature disclosure would harm the agency, KSR properly advised Mr. Wells that his request may be denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2). Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as recognized in OAG 86-80, this office 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." OAG 90-143, p. 3; 04-ORD-114; 01-ORD-85. In sum, the ultimate disposition of Mr. Wells' request(s) is entirely supported by governing precedents; no violation occurred.
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.