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 Kim De John's November 3, 2011, request, submitted on behalf of Kentucky Employers' Mutual Insurance, 1 for "copies of . . . [a]ny and all toxicology reports, case reports, accident reconstruction reports and/or photographs, including but not limited to electronic documents, and any other supporting documentation" relating to "an incident which occurred on or about September 2, 2011, involving Mr. Sam Music[.]" In a timely written response, KSP agreed to provide Ms. De John with access to all of the records being sought with the exception of the responsive toxicology reports, denying access on the basis of KRS 61.878(1)(a). 2 KEMI subsequently initiated this appeal, noting that its objective in requesting the toxicology report is "not to 'publically disclose' [sic] any information contained therein," but is to "fulfill its duty to fully investigate the circumstances surrounding claims of injury in order to make a determination of claim compensability." Because neither the identity of the requester nor his/her purpose in submitting a request is legally relevant, 3 and this office finds the argument made by KSP in response to KEMI's appeal entirely persuasive, consideration of whether KSP properly relied upon KRS 61.878(1)(a) is unwarranted. The analysis contained in 06-ORD-153 and 11-ORD-090 regarding application of KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h), is controlling. See also 11-ORD-090; 11-ORD-172.
Upon receiving notification of KEMI's appeal, Roger G. Wright, Assistant General Counsel, responded on behalf of KSP, initially acknowledging that "[a]lcohol and other substance testing has been completed, and the blood and urine screening reports sought by [KEMI] are in the Department's possession." Upon information and belief, Mr. Wright explained, "the above-referenced alleged driving under the influence offense remains pending against Mr. Music at this time. (See Kentucky AOC records for Johnson District Court Case No. 11-T-01839)." For this reason, KSP asserted, the request should be denied "under authority of KRS 61.878(1)(h), and KRS 17.150(2)." 4 In closing, KSP noted that KEMI "cites no provision under Kentucky Workers' Compensation statutes (KRS Chapter 342) which would require release of the subject reports to an insurer (without subpoena)" nor is KSP aware of such a provision.
By its express terms, KRS 61.878(1)(h) authorizes nondisclosure of "records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory or regulatory violations if disclosure of the information would harm the agency . . . . Unless exempted by other provisions of [the Open Records Act] public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.]" Similarly, KRS 17.150(2) provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." 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 (emphasis added). Based on a line of opinions dating back to 1976, affirmed in Skaggs v. Redford, 822 S.W.2d 389 (Ky. 1992) and reaffirmed by the Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), this office has consistently recognized that investigative records may be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." 5 Skaggs at 391. See 04-ORD-114; 06-ORD-051; 06-ORD-190; 07-ORD-140; 07-ORD-160; 07-ORD-247. Specifically, this office has consistently upheld the denial by law enforcement agencies, including KSP, of requests for toxicology/ laboratory reports on the bases of the cited exceptions, including as recently as November 2011. See 11-ORD-195. The analysis contained in 06-ORD-153 and 11-ORD-195 is controlling on this issue; a copy of each decision is attached hereto and incorporated by reference.
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:
Amy G. GriffinShiann N. SharpeRoger G. Wright
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