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 Lexington-Fayette Urban County Government violated the Kentucky Open Records Act in denying Ondra Clay's December 5, 2011, request for "copies of ALL witness statements that were collected during the investigations of" Case No. 05-00079490. In a timely written response, 1 LFUCG advised Mr. Clay that his request was denied on the basis of KRS 61.878(1)(h), quoting the language of that exception and emphasizing that such records are protected from disclosure until "after enforcement action is completed," which "is not just an arrest; it is sentencing, serving the sentence, and completing probation." 2
Upon receiving notification of Mr. Clay's appeal from this office, legal counsel for LFUCG confirmed that "a copy of the general investigation report" was provided to Mr. Clay but asserted that any responsive witness statements remain exempt "as they are part of the case file which is part of an ongoing investigation as Mr. Clay is still serving his sentence. " Citing 09-ORD-104 and 10-ORD-094, LFUCG correctly observed that prior decisions by this office have long recognized that "criminal case files are not to be given out until the sentence has been completed." This office finds that 09-ORD-104, adopted in a decision as recently as earlier this month (12-ORD-004), and premised on Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), is controlling on the question presented. Here, as in 09-ORD-104, this office finds 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.
In 09-ORD-104, the Attorney General upheld a denial by the Fort Thomas Police Department of a request for investigative records pertaining to a homicide prosecution which resulted in the defendant's conviction. 3 Under the sentencing agreement entered into by the parties, the defendant waived her right to appeal. In rejecting the newspaper appellant's claim that the defendant's waiver of her appeal rights meant there was no significant prospect of further judicial proceedings, the Attorney General reasoned:
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; 12-ORD-004. The Attorney General ultimately concluded that the Department had "sufficiently, if briefly, explained the potential harm that would result from the release of the investigative file." Id. at 6; 12-ORD-004. That harm was postulated on the possibility of remand for a retrial and the harm to the prosecution that could result from disclosure of records not utilized in the original trial of the case.
Because the instant appeal presents no basis for departing from the reasoning contained in 09-ORD-104, a copy of which is attached hereto and incorporated by reference, this office reaches the same result. See also 12-ORD-004 (copy enclosed). Notwithstanding the fact that no evidence has been presented to suggest that a motion for post-conviction relief is either pending or imminent here, as in 09-ORD-104 and 12-ORD-004, this office must conclude that LFUCG properly denied the request for investigative records on the basis of KRS 61.878(1)(h). See also 10-ORD-094. As in 12-ORD-004, however, in so holding this office is compelled to note that in Cincinnati Enquirer v. City of Fort Thomas , S.W.3d , 2011 WL (Ky. App.), the Kentucky Court of Appeals questioned our analysis in reviewing 09-ORD-104 and the circuit court opinion affirming that decision. Specifically, the Court struggled with establishing "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," ultimately holding that "with regard to the majority of the city's file, the city . . . failed to meet this burden." Id. at 5. A petition for discretionary review was filed in Cincinnati Enquirer v. City of Fort Thomas , above, on November 22, 2011, and the opinion is therefore not final. Until this issue has been conclusively resolved in the courts, this office "will continue to abide by our prior decisions as reflected in 09-ORD-104." 12-ORD-004, p. 4.
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:
Ondra Clay, # 210584Karen H. SteedJanet M. GrahamMichael R. Sanner
Footnotes
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