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 Kentucky State Police (KSP) violated the Kentucky Open Records Act in denying a September 23, 2011, request from attorney Herbert Deskins, Jr., for "the computer assisted dispatch (CAD) report for" the arrest of his client Danny J. Sincell on June 30, 2011. We find no violation in this case.
On September 30, 2011, KSP records custodian Shiann N. Sharpe responded: "This information is part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h)." Mr. Deskins initiated an appeal to this office on October 4, 2011, stating that "Mr. Sincell was indicted on the information supplied to the Grand Jury by an employee of the Kentucky State Police. I am preparing his defense and need a copy of the dispatch log pertaining to Danny Sincell." He provided the criminal case number, 11-CR-177. Emily M. Perkins, Paralegal Consultant for the KSP, clarified in a response dated October 10, 2011, that the case is pending in Pike Circuit Court. She reiterates the KSP's citations of KRS 17.150(2) and KRS 61.878(1)(h), noting that the records in question "are contained in an open and ongoing felony investigation that is pending prosecution." 1
KRS 17.150(2) excludes from public inspection "intelligence and investigative reports maintained by criminal justice agencies ? [until] prosecution is completed or a determination not to prosecute has been made." KRS 61.878(1)(h) additionally 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.
In 11-ORD-090 (copy attached), the rationale of which we hereby adopt, this office acknowledged that premature release of criminal investigation records in a public manner, rather than through appropriate discovery channels, could cause harm to law enforcement by jeopardizing the successful prosecution of the case. Therefore, since the prosecution of this matter has not been completed, the KSP properly invoked both KRS 17.150(2) and KRS 61.878(1)(h) and did not violate the Open Records Act in the disposition of Mr. Deskins' 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:
Herbert Deskins, Jr., Esq.Shiann N. SharpeEmily M. PerkinsRoger G. Wright, Esq.
Footnotes
Footnotes
1 The KSP emphasizes that it "does not contend that [Mr. Deskins] is not at all entitled to obtain the records he seeks but that [he] should utilize any criminal discovery procedures at his disposal." We have previously observed that whether a defendant may be entitled to obtain a record through discovery is not determinative of whether it is available under the Open Records Act, and expressed "our confidence in those rules of practice and procedure that 'require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action.'" 03-ORD-126, p. 4 (quoting Skaggs v. Redford, 844 S.W.2d 389, 391 (Ky. 1992)).