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 Floyd Laychak's February 17, 2011, request for "copies of the CAD incident detail for the alleged burglary call on the 28th day of July, 2009," 1 and the "KYIBRS Report #KY 14-09-0497, property data sheet of any and all items booked into evidence and loged [sic] into the evidence locker for the above numbered report." KSP Custodian of Records Shiann N. Sharpe advised Mr. Laychak that said records are "part of an investigation [with Mr. Laychak "identified as the suspect"] that is still open; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h)." 2 Arguing that because "an indictment has been rendered and the case set for trial" the cited exceptions do not apply, Mr. Laychak initiated this appeal. Upon receiving notification of Mr. Laychak's appeal from this office, Paralegal Consultant Emily M. Perkins supplemented the agency's response, initially confirming that the "requested records pertain to an ongoing criminal case pending in the Greenup Circuit Court, court case 10-CR-0111," and reiterating that his request was therefore properly denied for the reasons originally provided. In support of its position, KSP cited numerous decisions by this office holding that "'investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or the investigation has been concluded and a determination has been made not to prosecute the matter.'" (Original emphasis.) 3 It is our decision that KSP properly relied upon KRS 61.878(1)(h), and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Laychak's request, and that 99-ORD-93, a copy of which is attached hereto and incorporated by reference, is controlling on the issue presented in this appeal.
KSP advises that the requested records relate to a case which is currently pending in Greenup 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[.]" Similarly, 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." 4 In reply to Mr. Laychak's repeated claim 5 that disclosure of the records would not harm the agency, Ms. Perkins confirmed, in a letter dated June 2, 2011, that premature release of the records would harm KSP as "the public release of any of the materials, particularly materials disclosing the evidence collected, in an ongoing original prosecution by compromising the integrity of the materials and documents in the investigation since they would be produced publicly in lieu of being produced through proper criminal discovery procedures, which could jeopardize the successful prosecution of the case." 6
Because KSP has demonstrated the harm that would result from premature disclosure of the records, and the law enforcement action is not completed, this office must conclude that KSP's reliance on the cited provisions, as construed in 99-ORD-93, was proper, and that it did not violate the Open Records Act in denying Mr. Laychak's request. See also, 04-ORD-129; 04-ORD-234; 06-ORD-017; 06-ORD-203; 07-ORD-095; 08-ORD-247; 09-ORD-133. The potential harm that could result from premature disclosure prior to 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." 10-ORD-212, p. 3. Because "the possibility of further judicial proceedings remains a significant prospect," the law enforcement action has not been completed. Skaggs, above, at 391. The denial is therefore affirmed.
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:
Floyd LaychakShiann N. SharpeEmily M. PerkinsRoger G. Wright
Footnotes
Footnotes
1 CAD refers to Computer Aided Dispatch Log, which contains sensitive information, much of which, in short, is expressly protected under state confidentiality provisions, including KRS 17.150(4) and 65.752.
2 Ms. Sharpe also suggested that Mr. Laychak contact the Post 14 Records Clerk "to determine if the case has been closed prior to submitting another request to this office for that information."
3 Ms. Perkins also correctly noted, in response to Mr. Laychak's claim that the Sixth Amendment to the United States Constitution entitles him to access the records, that "the Office of the Attorney General 'is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880[2].'" (Citation omitted.)
4 In OAG 83-356, this office cited Cornett v. Judicial Retirement and Removal Commission, 625 S.W.2d 564 (Ky. 1982) in holding that a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken. "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." 10-ORD-212, p. 2. In 1992, the Kentucky Supreme Court affirmed this position. In Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), the Court addressed whether the Commonwealth's defense of a collateral attack on a criminal conviction is part of the prosecution of the criminal case. Concluding that it was, the Court reasoned 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. In so doing, 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. These principles were reaffirmed in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), in which the Court held 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).
5 Upon receipt of Ms. Perkins' May 12, 2011, response to his appeal, Mr. Laychak sent a reply letter in which he reiterated his opinion that the records requested are "not of a sensitive nature" and thus cannot be withheld as disclosure would not harm KSP as required to successfully invoke KRS 61.878(1)(h). Mr. Laychak further argued, without elaborating, that a conflict "may exist" between KRS 61.878(1)(h) and 17.150(2), and, finally, contended that "the only reason for the refusal to release this information, is because it does not [exist]." He offered no evidence in support of this contention.
6 Ms. Perkins clarified that KSP "does not contend that Mr. Laychak is not at all entitled to obtain the records he seeks but that Mr. Laychak should utilize any criminal discovery procedures at his disposal." Citing 05-ORD-251, Ms. Perkins correctly observed that it is "not the Attorney General's duty to determine whether records would be discoverable in a civil or criminal action." Id., p. 5. Rather, this office must limit its "review to deciding whether the KSP properly denied Mr. Laychak's open records request." Id.