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 Henry Crawford's request for the results of all scientific testing and laboratory reports pertaining to him. In a timely written response, Emily M. Perkins, Acting Custodian of Records for KSP, advised Mr. Crawford that any existing records which are responsive to his request "are DNA testing reports pertaining to a criminal conviction that is on appeal. Accordingly, your request is denied pursuant to KRS 17.175(4)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In addition, KSP advised Mr. Crawford that because "the underlying criminal conviction is currently on appeal (a Notice of Appeal was filed on August 10, 2010 in the Jefferson Circuit Court)[,]" and this office has consistently recognized that a "'criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken,'" his request was being denied, in the alternative, on that basis. (Citations omitted.) This office finds that KRS 17.175(4) is controlling here; accordingly, consideration of the secondary argument raised on behalf of KSP is unwarranted.
Pursuant to KRS 17.175(4), "DNA identification records produced from the samples are not public records but shall be confidential and used only for law enforcement purposes." This provision also expressly provides that "DNA identification records shall be exempt from the provisions of KRS 61.870 to 61.884 [the Open Records Act] ." KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." When viewed in conjunction, these statutory provisions validate the position set forth by KSP. In 03-ORD-126, this office acknowledged "that there is a paucity of available legal authority to guide us in resolving" the question presented here, and in that case, but found that "the interpretation of KRS 17.175(4) which KSP advances 'effectuates the plain meaning and unambiguous intent expressed in the law.' Bob Hook Chevrolet Isuzu v. Commonwealth of Kentucky, Transportation Cabinet, 983 S.W.2d 488, 492 (1958), cited in J.D.K. v. Commonwealth, Ky. App., 54 S.W.3d 174, 175 (2001)." 03-ORD-126, p. 5. The reasoning found in 03-ORD-126, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented. KSP properly denied Mr. Crawford's request on the basis of KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
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.
Henry Crawford, # 174142Emily M. PerkinsRoger G. Wright