Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Louisville Fire Department's Metro Arson Squad properly relied on KRS 61.878(1)(h), (j), and (l), as well as KRS 17.150(2), in denying attorney Thomas E. Clay's July 27, 2010, request for "any documents pertaining to a fire at Campbell's Gourmet Cottage on August 19, 2006, and/or Susan Lukjan specifically" including emails exchanged by Major Henry Ott and named agencies and entities. Because the "the possibility of further judicial proceedings remains a significant prospect," enforcement action in this case has not been completed and the Department did not violate the Open Records Act in denying Mr. Clay's request. 1
On July 23, 2010, Ms. Lukjan was convicted of arson and related insurance fraud charges and sentenced to a term of twelve years in prison. Having immediately stated to the press that his client would challenge her conviction, on August 10, 2010, Mr. Clay filed an appeal on her behalf (No. 2010-CA-001509). Under these circumstances, the cited exceptions, as construed in
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992) and
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005) clearly authorize denial of Mr. Clay's request "so long as the possibility of further judicial proceedings in the case remain 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). 2 See e.g., OAG 76-424; OAG 82-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69. Thus, in OAG 83-356, the Attorney General 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, 625 S.W.2d 564 (Ky. 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. As noted, these principles were reaffirmed in Bowling v. Lexington-Fayette Urban County Government, above, holding that the trial court properly quashed subpoenas for records in the custody of the Commonwealth's Attorney and Attorney General because the records were protected from disclosure by KRS 61.878(1)(h).
The Department properly asserts that because Ms. Lukjan is seeking post-conviction relief, her conviction is not final for purposes of open records analysis. The potential harm to the Commonwealth from premature disclosure of the requested record before conviction is predicated upon the need "to protect techniques of investigation and to prevent premature disclosure of the contents of the investigation to the target of the investigation," and, after conviction, is predicated on the Commonwealth's reluctance to close the case and dispose of evidence that may be needed in subsequent judicial proceedings. This brings the disputed records squarely within the parameters of KRS 61.878(1)(h), as well as KRS 61.878(1)(l), incorporating KRS 17.150(2) into the Open Records Act. Accord, 99-ORD-93; 03-ORD-123; 04-ORD-129; 05-ORD-211; 05-ORD-246; 08-ORD-259; 10-ORD-153. Our review of the requested emails pursuant to KRS 61.880(2)(c) confirms the Department's position. However compelling Mr. Clay's client's interest in these records may be, Kentucky's legislature, courts, and Attorney General have recognized that the Commonwealth's competing interests are superior.
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.
Travis Brian LockColonel Charles D. MuckerTerri A. Geraghty
Footnotes
Footnotes
1 We find no error in the Louisville Metro Police Department's denial of an April 26, 2010, request for the same records on the basis that it did not maintain any responsive records and Louisville Fire Department's denial of his May 4, 2010, request for the same records on the basis of KRS 61.878(1)(h), KRS 61.878(1)(l), and KRS 17.150(2) before the case went to trial.
2 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.