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 the Kentucky State Police properly relied on KRS 61.878(1)(h) in denying James Potter's September 5, 2011, request for "photographs of inside of house and property seized during the execution of the search warrant for 8510 Old Hwy 60 West, West Paducah, Ky 42086 by Detective Barry Rice . . . on July 22, 2011 for case no. 1-08-0613." (Sic.) This office's decision in 09-ORD-104 is dispositive of the issue on appeal. Here, as in 09-ORD-104, we conclude that "[b]ecause [the] requested investigative records related to a criminal conviction from which post-conviction relief could still be obtained, under applicable case law the conviction was not final for purposes of the Open Records Act." 09-ORD-104, p. 1.
On June 4, 2010, Mr. Potter was convicted of multiple sexual offenses that occurred over a six year period beginning when his victim was seven years old. On September 22, 2011, the Kentucky Supreme Court affirmed in part, and reversed and remanded in part, Mr. Potter's convictions. James C. Potter, II v. Commonwealth of Kentucky , 2010-SC-000410-MR (Ky. 2011). Shortly before the Supreme Court issued this opinion, Mr. Potter submitted an open records request to the Kentucky State Police. Having received no response, he submitted a "status request" to KSP a few weeks later. Again, he received no response prompting him to initiate this appeal.
On October 24, 2011, KSP responded to Mr. Potter's request and appeal. The agency disputed receipt of his original request and "status request," citing its timely response to a September 2 request as proof that it did not receive his September 5 request. 1 Turning to the merits of Mr. Potter's appeal, KSP invoked KRS 61.878(1)(h) and KRS 17.150(2) as the basis for denying his request. Apparently unaware that the Kentucky Supreme Court issued an opinion in this matter on September 22, KSP asserted that Mr. Potter "has an appeal of his criminal convictions pending . . . in case 2010-SC-00410." Potter v. Commonwealth , above. It was the agency's position that the requested investigative records were excluded from inspection "so long as the possibility of further judicial proceedings . . . remains a significant prospect." Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992). KSP also cited a line of Attorney General's decisions dating back to 1983 recognizing that investigative records may be withheld pursuant to KRS 61.878(1)(h) until a criminal conviction is final and that a "conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." OAG 83-356. In closing, KSP emphasized that a number of the referenced open records 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." While recent non-final case law casts some doubt on the validity of this proposition, we adhere to the holding in these open records decisions, and in 09-ORD-104 in particular, until this issue is finally resolved by the courts.
In 09-ORD-104, the Attorney General affirmed the Fort Thomas Police Department's denial of a request for investigative records relating to a homicide prosecution that resulted in the defendant's conviction and a sentencing agreement under the terms of which she waived her right to appeal. Against a claim that the waiver of her appeal rights meant there was no significant prospect of further judicial proceeding, this office opined:
The Supreme Court in Skaggs gave no definition of what constitutes a "significant prospect" of further judicial proceedings. Yet the Court did unanimously hold "that the defense of ? prospective habeas corpus proceedings is part of the 'law enforcement action'" and that the "legitimate state interest ? in prosecuting [an offender] is not terminated until his sentence has been carried out." 844 S.W.2d at 390. [Footnote omitted.] Since the convicted offender, and not the law enforcement agency, is in sole control of whether and when any motions for post-conviction relief will be filed, we can see no reasonable place to draw the line of "significant prospect" other than where it was drawn by the Court in Skaggs.
09-ORD-104, p. 5, 6. Continuing, we recognized that the agency "sufficiently, if briefly, explained the potential harm that would result from the release of the investigative file." Id. at 6. That harm was postulated on the possibility of remand for a retrial and harm to the prosecution from disclosure of records not utilized in the original trial of the case.
In response to a series of questions propounded by this office pursuant to KRS 61.880(2)(c), KSP asserted that "both the trial prosecutor, Hon. Seth Hancock, and the attorney for the commonwealth on appeal, Hon. Ken Riggs," averred that "the materials requested by [Mr. Potter] were never introduced at trial" and that it must "maintain its case file and preserve evidence not already made public in the event a retrial is warranted." The issue presented in Mr. Potter's appeal is, in all material respects, identical to the issue in 09-ORD-104, and resolution of the issue is governed by that open records decision. Notwithstanding the fact that no motion for post-conviction relief is either pending or imminent in Mr. Potter's case, we must conclude that KSP properly relied on KRS 61.878(1)(h) in denying his request.
The parties should be aware of a recent development in the law that may result in modification of this view. In Cincinnati Enquirer v. City of Fort Thomas ,
S.W.3d
, 2011 WL 5008308 (Ky. App.), the Kentucky Court of Appeals questioned our analysis in reviewing 09-ORD-104 and the circuit court opinion affirming that decision. The court determined that although records compiled by law enforcement agencies in the process of detecting or investigating statutory or regulatory violations are shielded from disclosure while avenues are available for a post-conviction challenge of the sentence, not all investigative records are shielded. At page 4 of that opinion, the court held that "KRS 61.878(1)(h) exempts law enforcement agency records only in the event that: 1) the agency can demonstrate harm by a showing that disclosure would reveal the identity of an unknown informant; or 2) the agency can demonstrate harm by the premature release of information to be used in a prospective law enforcement proceeding." The court struggled with determining "guidelines . . . about what constitutes 'harm' or 'premature release' of information," but recognized that "it is the burden of the denying agency to show that an exemption is applicable" and concluded that "with regard to the majority of the city's file, the city . . . failed to meet this burden." Id. at 5. Although this conclusion casts doubt on KSP's position in Mr. Potter's appeal, a petition for discretionary review was filed in Cincinnati Enquirer v. City of Ft. Thomas , above, on November 22, 2011, and the opinion is not final. Until this issue is finally resolved in the courts, we will continue to abide by our prior decisions as reflected in 09-ORD-104. On the basis of 09-ORD-104, we affirm KSP's denial of Mr. Potter's 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:
James Potter, # 237268Emily PerkinsRoger Wright
Footnotes
Footnotes