Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police did not violate the Open Records Act in denying William M. Terry's May 26, 2009, request to inspect "an 'itemized list' of any and all evidence that was collected and entered into evidence" in case number 03-07-0832. It is our decision that KSP properly relied on KRS 61.878(1)(h), KRS 61.878(1)(l), and KRS 17.150(2) in denying Mr. Terry's request, and that 99-ORD-93 is dispositive of the issue on appeal. A copy of that decision is attached hereto and incorporated by reference.
KSP advises that the requested record relates to a case in which "the original prosecution is still pending . . ." in Warren Circuit Court. By its express terms, KRS 61.878(1)(h) authorizes nondisclosure of "records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory or regulatory violations if disclosure of the information would harm the agency . . . . Unless exempted by other provisions of [the Open Records Act] public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.]" So, too, KRS 17.150(2) provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." Although not expressly stated, it appears that the prosecutor in the referenced case has expressed concern that premature release of the record would compromise the prosecution of the case. On this basis, we conclude that KSP's reliance on the cited provisions, as construed in 99-ORD-93, was proper, and that the agency did not violate the Open Records Act in denying Mr. Terry's request. See also, 04-ORD-129; 04-ORD-234; 06-ORD-017; 06-ORD-203; 07-ORD-095.
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:
William M. Terry, #193971Shiann N. SharpeRoger Wright