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 Eric Cunningham's October 5, 2011, request "to inspect the laboratory report for the testing of the evidence submitted by State Trooper Brent Lynch in Citation #AT8019." KSP received Mr. Cunningham's request on October 11, and issued a timely written response on October 14, denying access on the bases of KRS 17.150(2) and 61.878(1)(h) because the report "is part of an investigation that is still open pending criminal prosecution, identified as [KSP] case 07-11-0645." The analysis contained in 11-ORD-090 is controlling on the facts presented.
In response to his appeal, KSP further advised that a criminal prosecution is "pending in Lee Circuit Court, case 11-CR-0025," and premature disclosure of records contained in the KSP investigative file, identified as KSP case 07-11-0645, "in an ongoing original criminal prosecution would harm the agency by compromising the integrity of the materials and documents in the investigation since they would be produced publicly in lieu of being produced through the proper criminal discovery procedures, which could jeopardize the successful prosecution of the case." KSP did not contend that Mr. Cunningham is not entitled to access but that he "should utilize any criminal discovery procedures at his disposal." Because KSP ultimately demonstrated the harm that would result from disclosure of the report in dispute, and the law enforcement action has not been completed, as in 11-ORD-090 this office concludes that KSP properly relied on the cited exceptions in denying the subject request. A copy of that decision is attached hereto and incorporated by reference. 1 See 11-ORD-071 (adopting the analysis of the Kentucky Supreme Court 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), as well as 10-ORD-212, in holding that Bowling Green Police Department properly denied request for investigative records relating to pending criminal prosecution) . 2
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:
Eric CunninghamShiann N. SharpeRoger G. WrightEmily M. Perkins
Footnotes
Footnotes