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 Lexington-Fayette Urban County Division of Police violated the Open Records Act in denying Yaqob T. Thomas' January 12, 2010, request "to inspect any and all information and documents regarding polygraph examinations administered from 12-30-2002 until 12-30-2004, on suspects excluded or included on the December 29, 2002 Waldren Drive homicide." For the reasons stated below, we find that the Division of Police did not violate the Act.
By letter dated January 19, 2010, Karen H. Steed, Assistant Records Custodian, responded to Mr. Thomas' request, invoking KRS 61.878(1)(h) 1 and KRS 17.150(2) as incorporated into the Open Records Act by KRS 61.878(1)(l). She stated that the criminal case "has been cleared by arrest but is still considered an open case until all law enforcement action, including the serving of the sentence and probation, is complete." Accordingly, she advised that the polygraph records were exempt from public inspection as records of law enforcement agencies compiled in the process of investigating statutory violations under KRS 61.878(1)(h), as well as intelligence or investigative reports maintained by criminal justice agencies under KRS 17.150(2), and therefore denied his request under authority of the cited provisions.
In his undated letter of appeal, Mr. Thomas states that the release of the records "is not in anyway [ sic ] shape or form harming this agency because there is no prospective law enforcement action because I am already sentenced and imprisoned. Thus, the refusal isn't substantiated with clear and convincing evidence under KRS.61.872 [ sic ]." The Division of Police responded on February 11, 2010, with a letter from Michael R. Sanner, Attorney Senior. Mr. Sanner argues that under prevailing precedent the possibility of post-conviction motions makes police investigative files exempt from disclosure until the convicted offender's sentence has been fully carried out.
As a preliminary matter, we note that the "clear and convincing evidence" standard Mr. Thomas invokes does not apply to the statutory exceptions cited by the Division of Police herein, but only to an argument under KRS 61.872(6) that producing the records constitutes an unreasonable burden. The Division of Police has not made that argument here. KRS 61.878(1)(h), however, does contain a requirement that a denial be supported by at least some indication that "disclosure of the information would harm the agency." The Division of Police has made no particular allegation of harm.
Nevertheless, we find that KRS 17.150(2)(d), as incorporated into the Open Records Act by KRS 61.878(1)(l), applies in this instance because it does not require a showing of harm to the agency. That subsection allows records to be withheld if inspection would disclose "[i]nformation to be used in a prospective law enforcement action. " Under Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992), "the state's interest in prosecuting [a convicted criminal] is not terminated until his sentence is carried out." Although Skaggs was decided under KRS 61.878(1)(h), 2 its reasoning applies equally to KRS 17.150(2)(d), which contains the identical key language of "information to be used in a prospective law enforcement action. " Therefore, since Mr. Thomas' sentence was not fully carried out, the disposition of his request did not violate the Open Records Act.
Our rationale for this conclusion is more fully set out in 09-ORD-030 and 09-ORD-104, which are attached hereto and adopted as the basis for our decision herein. Since KRS 17.150(2) is dispositive of this appeal, we need not decide whether the agency properly invoked KRS 61.878(1)(h); nor need we address the Division of Police's alternative argument that the names of suspects who were not arrested may be redacted pursuant to KRS 61.878(1)(a) under the holding in Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Gov't, 297 S.W.3d 579 (Ky. App. 2009).
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.
Yaqob T. Thomas # 139154Michael R. Sanner, Esq.Ms. Karen H. Steed
Footnotes
Footnotes
1 The letter mistakenly cited KRS 61.878(1)(l) but proceeded to quote the language of KRS 61.878(1)(h).
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2 That subsection was designated then as KRS 61.878(1)(g).
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