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 although the Bowling Green Police Department violated KRS 61.880(1) by failing to issue a timely written response to Samuel D. Harris' February 18, 2011, request for investigative records relating to the criminal case against him, No. 2009-06667, the Department's belated denial of that request, under authority of KRS 61.878(1)(h), was otherwise consistent with the provisions of the Open Records Act. This decision finds support in
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992),
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), and 10-ORD-212. A copy of the latter open records decision is attached hereto and incorporated by reference. See also, 03-ORD-123 (enclosed).
10-ORD-212 synthesizes some thirty-five years of the Open Records Law as it relates to ongoing criminal investigation and litigation recognizing that records generated in these processes can be withheld from public inspection "so long as the possibility of further judicial proceedings in the case remain a significant prospect." Skaggs at 39. It reflects the Kentucky Supreme Court's confidence in "the judicial rules of practice and procedure that apply to [criminal] case[s] . . . [and] require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id.
The criminal case against Mr. Harris was set for trial in mid-March, 2011, approximately one month after he submitted his open records request and one-half month after he initiated this appeal. The Bowling Green Police Department has since advised this office that the disputed investigative records were provided to Mr. Harris' attorney in the course of discovery. As in 10-ORD-212, the facts of this appeal support the law enforcement agency's denial of the requested records under authority of KRS 61.878(1)(h). We find no error, other than the procedural error noted above, in the Bowling Green Police Department's denial of Mr. Harris' request.
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:
Samuel D. Harris, # 178469Col. Doug HawkinsH. Eugene Harmon