Opinion
Opinion By: Jack Conway, 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 Ricky A. Lamkin's request for "each and every document concerning the investigation into the death of Everett Ray Walker on March 18, 2008 by the Kentucky State Police involving Officer John Cooper of the Murray Police Department at the corner of LP Miller Drive and Main Street, Murray Calloway County, Kentucky[.]" 1 In a timely written response, Official Custodian of Records Shiann N. Sharpe advised Mr. Lamkin that all of the records being sought are "part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h)." Disputing the characterization of the criminal investigation as open, since Officer Cooper "was indicted by the Grand Jury and later arraigned on September 8, 2008[,]" Mr. Lamkin initiated this appeal by letter dated September 16, 2008; Mr. Lamkin has "no interest in Trooper Russell Boyd's criminal investigation but much interest in Trooper Tim Sales['] accident investigation."
Upon receiving notification of Mr. Lamkin's appeal from this office, Roger G. Wright elaborated upon the position of the KSP, advising that the "investigation which Mr. Lamkin seeks is related to the pending criminal prosecution of Officer Cooper in the Calloway Circuit Court, Case No. 08-CR-00116." (Emphasis added.) Citing Skaggs v. Redford, Mr. Wright argues that "premature release of the requested documents prior to the completion of this pending prosecution could harm a prospective law enforcement action. As such, the record[s] being sought [are] currently exempt from production in accordance with KRS 61.878(1)(h) and KRS 17.150(2)." Acknowledging Mr. Lamkin's "asserted specific need for the requested documents," Mr. Wright correctly observes that generally speaking, neither the identity of the requester nor his purpose in requesting access have any bearing under the Act "with the exception of the right of inspection granted to public employees under KRS 61.878(3)." In a letter dated October 2, 2008, Mr. Lamkin challenges the agency's reliance on Skaggs v. Redford, and further contends that certain documents are not properly characterized as "intelligence and investigative reports" 2 within the meaning of KRS 17.150(2). Because the position of the KSP is consistent with governing precedents, the Attorney General must affirm the denial of Mr. Lamkin's request on the bases of KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h).
In our view, the analysis contained in 04-ORD-234 and 05-ORD-246 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Early on, the Attorney General analyzed the underlying purpose of KRS 61.878(1)(h) and its "companion statute," KRS 17.150(2), observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). More recently, this office determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. Of particular significance, both KRS 17.150(2) and KRS 61.878(1)(h) "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 (emphasis added). Based on a line of opinions dating back to 1976, affirmed in Skaggs v. Redford, and reaffirmed by the
Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), this office must again conclude that the investigative records in dispute may be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." Skaggs at 391. See 04-ORD-114; 06-ORD-051; 06-ORD-153; 06-ORD-190; 07-ORD-140; 07-ORD-160; 07-ORD-247.
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.
Distributed to:
Ricky A. LamkinSergeant Bill LockwoodShiann N. SharpeRoger G. Wright
Footnotes
Footnotes
1 More specifically, Mr. Lamkin indicated the records would include, but not be limited to:
accident reports made by any law enforcement agency; investigation reports of any kind made by any law enforcement agency; any and all photographs, videotapes, and/or audiotapes of the accident scene and surrounding area; any surveys and/or plats of the accident area used in the investigation; any and all accident reconstruction reports, simulation studies, diagrams, videotapes, printout of Officer Cooper's computer reading and related documents, etc.; any and all witness statements (oral, written or tape-recorded) including investigator notes; autopsy reports; toxicology reports of victim and Officer Cooper; Internal Affairs investigation reports conducted by any law enforcement agency; names, addresses and telephone numbers of all persons and/or agencies concerning the investigation of the victim and Officer Cooper.
2 More specifically, Mr. Lamkin believes the following documents must be released:
1) Accident reports made by any law enforcement agency;
2) Photographs, videotapes, and/or audiotapes of the accident scene and surrounding area;
3) Any surveys and/or plats of the accident area used in the investigation;
4) Any and all accident reconstruction reports;
5) All witness statements; and
6) Autopsy reports
See, for example, 01-ORD-131 (affirming denial of request for a final autopsy report based on KRS 61.878(1)(h) while criminal prosecution is ongoing).