Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although the arguments originally advanced by the Office of the Western Kentucky Regional Medical Examiner in support of the denial of Paducah Sun staff writer Alan Reed's October 20, 2011, open records request were legally deficient, the Medical Examiner remedied these deficiencies in supplemental correspondence issued after Mr. Reed initiated this appeal. In that correspondence, the Medical Examiner explained that the autopsy reports for LaWarren Sims, DeShaun Wilson, and Betty Kelsey, which Mr. Reed requested, 1 are excluded from public inspection by KRS 17.150(2) and/or KRS 61.878(1)(h). We affirm the Medical Examiner's denial of Mr. Reed's request on this basis. In light of this conclusion, we do not consider the remaining arguments advanced in support of the denial of Mr. Reed's request.
On October 25, 2011, the Medical Examiner provided Mr. Reed with the "final diagnosis" page on LaWarren Sims and DeShaun Wilson but otherwise denied his request as it related to these individuals on the basis of KRS 61.878(1)(a), KRS 61.878(1)(k), and 45 CFR Part 164 (HIPAA). With reference to Betty Kelsey, the Medical Examiner invoked KRS 61.878(1)(h), explaining that her "case remains open with the Graves County Coroner. " On appeal, Mr. Reed contested this statement, noting that on September 21, 2010, Kentucky State Police Post 1 Public Affairs Trooper Dean Patterson announced that KSP "considered [Ms. Kelsey's] death to be a non-criminal homicide and declared the case closed." In addition, Mr. Reed contested the Medical Examiner's invocation of KRS 61.878(1)(a) and HIPAA to support nondisclosure of Sims' and Wilson's autopsy reports, asserting that the Medical Examiner lacks authority to invoke these provisions and that, once the criminal process is concluded, autopsy reports are subject to inspection. 2 Given the belated introduction of proof that Betty Kelsey's case "is still open pending further investigation and a potential inquest, " that the two men convicted of murdering LaWarren Sims have appealed their convictions, and that the Ballard County Commonwealth's Attorney has stated that charges relating to the death of DeShaun Wilson may be brought again 3 "when more evidence is available," we find no error in the Western Kentucky Regional Medical Examiner's denial of The Paducah Sun's request.
Mr. Reed acknowledges that the presence of an open investigation or prosecution may impede public access to autopsy reports on the basis of KRS 61.878(1)(h) and KRS 17.150(2). This principle finds ample support in decisions of this office dating back to 1982. Thus, in 05-ORD-262 we reaffirmed the longstanding view that "a coroner may withhold an autopsy report on the basis of KRS 61.878(1)(h) [and KRS 17.150(2)] while criminal prosecution is contemplated or in progress." See 05-ORD-262, p. 3 and authorities cited therein (enclosed) . In supplemental correspondence directed to this office after Mr. Reed initiated his open records appeal, the Medical Examiner introduced proof, for the first time, that Ms. Kelsey's autopsy report is exempt because the Medical Examiner is assisting the Graves County Coroner in the investigation of her death pursuant to KRS 72.210, and her case "is still open pending further investigation and a potential inquest" notwithstanding contrary representations made by the Kentucky State Police. 4 The Medical Examiner offered similar proof of an ongoing investigation in the case of DeShawn Wilson, including the prosecutor's affidavit suggesting the possibility of prospective prosecution, and an ongoing prosecution in the case of LaWarren Sims, including the prosecutor's statement that the two men convicted of his murder "are seeking post-conviction relief by collaterally attacking the judgments under RCr 11.42." Citing
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1993). Under the referenced line of authority, the Medical Examiner's denial of Mr. Reed's request was legally supportable.
Nevertheless, in 06-ORD-265 the Attorney General recognized that although this office "generally defers to a law enforcement agency's classification of an investigation as active, inactive, or closed, . . . we have had occasion to question an agency's reliance on KRS 61.878(1)(h) and KRS 17.150(2), and its classification of an investigation as open, where several years have elapsed and the agency fails to provide an adequate explanation or otherwise meet its statutory burden of proof." 06-ORD-265, p. 7. A copy of 06-ORD-265 is enclosed. In that decision the Attorney General concluded that KRS 61.878(1)(h) and KRS 17.150(2) "should no longer be used by the Division [of Police] 'to delay or impede the exercise of rights granted by' 5 the Open Records Act" to records relating to a forty-one year old murder investigation. While the investigations at issue in this appeal have not been open for an inordinate period of time, law enforcement agencies should bear these authorities in mind in characterizing an investigation as open and indefinitely postponing access to investigative records.
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:
Alan ReedMandy CombestAlea Amber Arnett
Footnotes
Footnotes
1 Mr. Reed initially requested autopsy reports for Keith Coleston and Ariel Allison in addition to the referenced autopsy reports. The Medical Examiner invoked KRS 61.878(1)(h) in denying him access to these reports. On appeal, Mr. Reed "recognize[d] open investigations and prosecutions related to the deaths of Allison and Coleston and with[drew] its requests based on KRS 61.878(1)(h)."
2 Mr. Reed also questioned the authority of the Medical Examiner's Staff Assistant to respond to his open records request. We find no support in the law for his assertion that the State Medical Examiner or Regional Medical Examiner is "the custodian of records in these matters" and was obligated to issue the response. KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer of a public agency who is responsible for the maintenance, care, and keeping of public records . . . ." (Emphasis added.) The role of official custodian may thus be assigned to any officer or employee of a public agency.
3 Charges involving the death of the six week old child were brought in Ballard County, but were dismissed without prejudice.
4 The Medical Examiner described, in considerable depth, the independent role of the coroner in "determining the cause and manner of death in coroner's cases." Acknowledging that KSP has closed its case, "the coroner, " he concluded, "has not closed his. . . ."
5 KRS 61.878(1)(h).