Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Fort Thomas ("the City") violated the Open Records Act in denying Kentucky Enquirer reporter Jim Hannah's request to inspect and copy the police investigation into an individual's death. For the reasons stated below, we find that the City's response was partially in violation of the Open Records Act.
On April 8, 2009, Mr. Hannah requested from Fort Thomas Police Chief Michael Daly "access to, and copies of, the investigation into Robert McCafferty's death." Chief Daly responded on April 13, 2009, noting that Cheryl McCafferty had been sentenced for the homicide in March 2009 and further stating as follows:
Cheryl McCafferty has the right to file a motion, within three years of final judgment, under Rule of Criminal Procedure 11.42, to vacate, set aside or correct the sentence. Section (6) provides that "If it appears the Movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate."
Therefore, your request is denied pursuant to the exemption to open records set forth in K.R.S. 61.878 (1) (h), which exempts records of law enforcement agencies until enforcement action is completed. Due to the right of a defendant to file a motion under Rule of Criminal Procedure 11.42, the action has not been completed.
In his letter of appeal on behalf of The Kentucky Enquirer, dated April 29, 2009, attorney Paul Alley states that Cheryl McCafferty entered into a sentencing agreement in which she waived her appeal rights. Because of this fact, Mr. Alley asserts that there is no "'significant prospect' for further judicial proceedings" because her sentencing agreement would act as a "deterrent" to a motion under RCr 11.42. He further points out that previous decisions of the Attorney General concerning KRS 61.878(1)(h) and the prospect of post-conviction litigation have "all involved situations where an actual motion was pending or had actually been threatened by the defendant"; that is, where further judicial proceedings were a practical certainty. In this case, he alleges, the City is merely using the statutory exemption to "delay or impede" access to records without reason, as expressly prohibited by subsection (1)(h).
In addition, Mr. Alley argues that the City police department cannot continue to withhold its entire investigative file "when some portion of those documents and the file will have been introduced into evidence or disclosed as part of the trial." Furthermore, he provides documents showing that the police department released copies of two videotapes connected with the same investigation to WCPO-TV on March 17, 2009, and contends that the City may not selectively disclose these tapes to one news organization and withhold them from another.
The City's response, submitted May 15, 2009, by attorney Jann Seidenfaden, states the following as a basis for its invocation of KRS 61.878(1)(h):
There was no waiver by Cheryl McCafferty of her legal right to file a motion, within three years of final judgment (March 16, 2009), under Rule of Criminal Procedure 11.42, to vacate, set aside or correct the sentence. If she would file a motion and be entitled to relief, the court may grant her a new trial. In the event of a second trial, the law enforcement records would be essential to the new trial. Premature release of this information would be detrimental to the prosecution of this case. For example, there was considerable coverage in the news media regarding whether there was spousal abuse. At trial, the defense attorneys did not assert this defense; however, this could be asserted in a new trial and any information contained in the law enforcement records, regarding abuse or lack thereof, would be essential to the prosecution of the case.
The City also points out that since Mrs. McCafferty was sentenced to eighteen years to serve at twenty percent parole eligibility, and parole is not granted automatically, her sentence could exceed the three-year time limit for filing a Rule 11.42 motion. 1 In that case, the City argues, the police investigation would still be exempt from inspection under
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), until the sentence had been fully carried out. The City does not address Mr. Alley's contentions that portions of the investigative file have been admitted as evidence or provided to WCPO-TV.
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) 2 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." ? 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 [records] 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). 3 [Citations to prior opinions omitted.] 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.
Before and since Skaggs, this office has consistently applied the exemptions in KRS 17.150(2) and KRS 61.878(1)(h) 4 to situations involving a motion for post-conviction relief. See, e.g., 09-ORD-030; 07-ORD-095; 07-ORD-089; OAG 91-91; OAG 91-57. 5 We have not previously been called upon, however, to address a situation in which there was no indication that such a motion was either pending or imminent.
The Supreme Court in Skaggs gave no definition of what constitutes a "significant prospect" of further judicial proceedings. Yet the Court did unanimously hold "that the defense of ? prospective habeas corpus proceedings is part of the 'law enforcement action'" and that the "legitimate state interest ? in prosecuting [an offender] is not terminated until his sentence has been carried out." 844 S.W.2d at 390. 6 Since the convicted offender, and not the law enforcement agency, is in sole control of whether and when any motions for post-conviction relief will be filed, we can see no reasonable place to draw the line of "significant prospect" other than where it was drawn by the Court in Skaggs.
The City has sufficiently, if briefly, explained the potential harm that would result from the release of its investigative file. Accordingly, under the facts in this appeal, the City was entitled to rely on KRS 61.878(1)(h). We must turn, however, to Mr. Alley's arguments that some portions of the police investigation have already been disclosed.
Mr. Alley first contends that the City may not invoke KRS 61.878(1)(h) as to any portions of its investigative file that have become part of the record in Mrs. McCafferty's trial or otherwise disclosed or produced as part of the criminal proceedings. There is nothing in the record of this open records appeal to establish which, if any, documents in that file were introduced at trial; to whom they may have been disclosed or produced by the prosecutors; or whether they may be under seal or otherwise protected by court order. We are unable, in any event, to hold as a rule that the KRS 61.878(1)(h) exemption is lost as to those records, because the City cannot be charged with knowledge of what has or has not been tendered into evidence or otherwise produced by the Commonwealth's Attorney. Furthermore, the fact that such records may have been made available in a limited forum by a prosecutor does not preclude a public agency from arguing that harm could be caused by further dissemination of those records when they may be used in a prospective law enforcement action.
The City's prior disclosure of two videotapes to WCPO-TV, however, is another matter. "The Attorney General has long recognized that all persons have the same standing to inspect public records under the Open Records Act. " 01-ORD-81, p. 6 (citations omitted) In 01-ORD-81, we declared that "[i]f evidence existed that [a public agency] had engaged in the practice of selective disclosure of its records through its custodian of records, this office would be bound to declare its practice a violation" of the Act. Id. In view of the City's silence on this issue, this is not a similar situation to 09-ORD-049, in which a "change in circumstances" was accepted as justifying an agency's altered practice as to disclosure. 09-ORD-049, p. 3. From the City's failure to confirm or deny that it previously released videotapes pertaining to this criminal investigation to WCPO-TV, we conclude from the documents provided by Mr. Alley that it did so. Since the City has articulated no basis for distinguishing between WCPO-TV and The Kentucky Enquirer, we find that it may not rely on KRS 61.878(1)(h) as to those two videotapes.
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:
Paul Alley, Esq.Jann Seidenfaden, Esq.Michael G. Daly, Chief of Police
Footnotes
Footnotes
1 Although it is not mentioned by the parties, we note that under RCr 11.42(10) a motion may also be filed outside the three-year limit if facts are newly discovered which could not have been ascertained through due diligence, or if a fundamental constitutional right is newly established and held to apply retroactively.
2 Neither KRS 61.878(1)(l) nor KRS 17.150(2) is cited by the City, but the basic analysis and end result of this appeal are not changed by their inclusion herein for the sake of completeness.
3 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.
4 In the earlier decisions cited, the exemption for law-enforcement records was referred to by its former designation of KRS 61.878(1)(f).
5 See also 07-ORD-216, p. 3 (affirming denial because "the record establishes that further judicial proceedings in [the] case are possible" and noting that applicant had stated investigative reports were needed for post-conviction motions).
6 Accord, Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.3d 333 (Ky. 2005).