Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying attorney Kim F. Quick's September 16, 2011, request, made on behalf of the Estate of Barry Barnes, for a copy of the results of the "alcohol and toxicology tests" performed on James Loy after the July 8, 2011, motor vehicle accident which resulted in Mr. Barnes' death. In a timely written response, Official Custodian of Records Shiann N. Sharpe denied Ms. Quick's request, confirming that "the alcohol testing has been completed; however, the toxicology testing has not been completed." KSP advised Ms. Quick that her written request for the completed report was denied pursuant to KRS 61.878(1)(a), quoting the language of that exception without further explanation. 1 However, KSP further asserted that "[t]he completed report, 11-C-03992 and the report yet to be created after toxicology analysis is completed are part of a Campbellsville Police Department Investigation, identified as case # 109-11-222." 2 Quoting 09-ORD-143, KSP correctly noted that "'[t]his office has recognized, on more than one occasion, that where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency.'" Because this office finds that KSP ultimately satisfied its burden of proof relative to KRS 61.878(1)(h), consideration of the agency's other argument is unnecessary. 3
Upon receiving notification of Ms. Quick's appeal from this office, Paralegal Consultant Emily M. Perkins responded on behalf of KSP, reiterating the agency's position relative to both KRS 61.878(1)(a) and (1)(h). In relevant part, KSP advised that "there is an open investigation with the Taylor County Sheriff's Department pertaining to the death of Barry Barnes, which exempts these reports pursuant to KRS 17.150(2) and 61.878(1)(h)." Quoting from OAG 90-143 ("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") and 09-ORD-143 (see above), KSP maintained that premature disclosure of the requested toxicology report would harm the subject investigation. In reply, Ms. Quick argued that KSP initially failed to expressly assert that the investigation was ongoing; however, even assuming that is true, she continued, KSP "cannot be adversely affected by the disclosure, because disclosure of test results cannot even be argued to affect the agency in this case." Finally, Ms. Quick asserted, "there is no proof or evidence of any kind that there is any ongoing investigation by the [CPD or the TCSD]. There is no letter from the Campbellsville Police Chief or Taylor County Sheriff and no affidavit from any officer or deputy."
Ms. Perkins further advised that she has spoken with Taylor County Sheriff Allen Newton, "who verbally confirmed that his office has an open and ongoing investigation regarding the death of Barry Barnes and stated that any materials that may be in the possession of the KSP will become part of their investigative file and, as such, requested that any records in the possession of the KSP not be released at this time." 4 KSP also spoke with Taylor County Sheriff's Department case officer Michael Cassell, the agency's Records Administrator, "who averred that the agency has an open and ongoing investigation regarding this matter." Included with Ms. Perkins' response was a copy of Mr. Cassell's affidavit to that effect. As of October 13, 2011, "upon information and belief," KSP advised, "prosecution has not been declined in this matter." According to KSP, "the results of chemical testing of bodily fluids could have a great impact on any potential criminal prosecution regarding the death of Barry Barnes; consequently, the premature disclosure of such records could negatively impact the potential prosecution." Relying upon a line of decisions by this office applying KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h), KSP asked this office to uphold the denial of Ms. Quick's request.
Early on, the Attorney General analyzed the underlying purpose of KRS 61.878(1)(h) and its "companion statute," KRS 17.150(2), observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). More recently, this office determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. Of particular significance, both KRS 17.150(2) and KRS 61.878(1)(h) "recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made." 04-ORD-114, p. 9.
This appeal presents no reason to depart from governing precedents applying KRS 17.150(2) and 61.878(1)(h). Both KSP and the Taylor County Sheriff's Department are law enforcement agencies. KSP has now confirmed that the Department has an open and ongoing investigation of the July 8, 2011, accident which resulted in Mr. Barnes' death. The records being sought were unquestionably "compiled in the process of detecting and investigating statutory or regulatory violations." As indicated, this office has recognized that "where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency.'" 09-ORD-143, p. 5 (citation omitted). KSP ultimately made a minimal showing of the harm to the Department's investigation that would result from premature disclosure of the results of the "blood alcohol and toxicology tests." In sum, KSP satisfied all three prongs of the KRS 61.878(1)(h) test. Based on a line of opinions dating back to 1976, affirmed in Skaggs v. Redford , and reaffirmed by the
Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), this office again concludes that the investigative records in dispute may be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." Skaggs at 391. See 04-ORD-114; 06-ORD-153; 06-ORD-190; 07-ORD-140; 07-ORD-160; 07-ORD-247; 08-ORD-226.
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:
Kim F. QuickShiann N. SharpeRoger G. Wright
Footnotes
Footnotes
1 In failing to briefly explain how KRS 61.878(1)(a) and (1)(h) specifically applied to the records being withheld, the agency violated KRS 61.880(1).
2 KSP later clarified that an officer from CPD assisted the investigating officer from the Taylor County Sheriff's Department by collecting the sample and submitting it to the lab, and thus he completed the evidence submission form; however, the latter agency is conducting the ongoing investigation.
3 On appeal Ms. Quick asked this office to "order the [KSP] and their police laboratory to immediately release to undersigned counsel all records in their possession or which may come into their possession in the next six months concerning any blood, urine or chemical testing performed on James B. Loy after the motor vehicle accident of July 8, 2011." However, this office has consistently recognized that "standing requests" for public records do not have to be honored. 09-ORD-065, p. 4. See OAG 91-78; 95-ORD-43. This line of decisions clearly supports the view that the Open Records Act regulates access to existing records only. Id. Accordingly, KSP could have properly denied the request as to the toxicology analysis on that basis alone. In the interest of efficiency, and since the "alcohol testing" has been completed, this office has addressed the merits of the substantive argument(s) raised.
4 In such instances, KSP should not generally invoke KRS 61.878(1)(h) prospectively, but should wait until the record(s) in dispute have actually become part of the investigating agency's file in order to specifically determine what harm, if any, would result from disclosure; however, given the unique nature of these records, the harm that would result from disclosure on the facts presented is fairly self-evident.