Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented is whether the Kentucky State Police violated the Kentucky Open Records Act in denying LeAnders L. Jones' March 6, 2012, request for copies of "[a]ny and all documents related to, prepared for, received at, or otherwise concerning the police report investigation of Mike Bullington (1908 West Otter Creek, English, Indiana 47118; DOB; 12-17-1962; SS# **-3659) who committed the offense of Theft By Deception $ 300.00 or more in Boyle County, Kentucky, between January 1, 2006 and February 16, 2009 when he used a credit card in the name of Kimball International." In a timely written response, KSP denied Ms. Jones' request on the bases of KRS 17.150(2) and 61.878(1)(h) as the records are "part of an investigation that is still open, identified as [KSP] case number 07-09-0332" and the "matter has not been adjudicated in Boyle Circuit Court case number 09-CR-00122 as Diversion was ordered until the date 01/04/2016." Ms. Jones then filed the instant appeal, explaining that her law firm submitted the request "to assist it in its representation of Great American [Insurance Company] against Michael Bullington in the United States Bankruptcy Court for the Southern District of Indiana, Case No. 11-59089." In her view, prosecution of the matter is completed within the meaning of KRS 17.150(2) as the Boyle Circuit Court accepted Mr. Bullington's guilty plea in lieu of a prison sentence and granted his request for pretrial diversion by order entered on January 11, 2011. 1 This argument is unpersuasive when viewed in light of existing legal authority.
Upon receiving notification of Ms. Jones' appeal from this office, KSP reaffirmed its original position, arguing that Mr. Bullington's case "is open and active as Mr. Bullington is still subject to sentencing if diversion is not successfully completed. There is a possibility of further litigation pertaining to the original conviction and, further, the conviction could be appealed." For these reasons, KSP maintained that "until diversion is successfully completed the criminal action is not final." If the court voids Mr. Bullington's diversion, KSP continued, a criminal trial could result; accordingly, KSP emphasized the need to "maintain its case file, preserve evidence, and preserve the chain of custody in the event that the criminal charges are reinstated." Implicitly relying upon
Skaggs v. Redford, 844 S.W.2d 389, 391 (Ky. 1992), KSP noted that consequently "it is well-established that investigations are not subject to disclosure while litigation pertaining to the underlying conviction is pending or there is a significant likelihood of further litigation." (Emphasis added.)
KSP also correctly observed that in OAG 83-356 the Attorney General recognized that a "'criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." Citing a line of decisions by this office "which all affirm denial of requests to produce records in cases open due to pending appeals or litigation," KSP reiterated that its denial of Ms. Jones' request was justified under KRS 17.150(2) and 61.878(1)(h). This office finds that 09-ORD-104, adopted in several recent decisions, including 12-ORD-004, and premised on
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), validates the position of KSP and is controlling on the question presented. 11-ORD-165; 11-ORD-195; 12-ORD-024; 12-ORD-045. Here, as in 09-ORD-104, "[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 [or criminal action] 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. 2 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 motion for post-conviction relief is either pending or imminent here, and Mr. Bullington's request for pre-trial diversion was granted, as in 09-ORD-104 and 12-ORD-004 this office must conclude that KSP properly denied the request for investigative records on the bases of KRS 17.150(2) and KRS 61.878(1)(h) for the reasons noted above. 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:
LeAnders L. JonesRoger G. WrightShiann N. Sharpe
Footnotes
Footnotes
1 Ms. Jones correctly argued that KSP failed to demonstrate any harm that would result from premature disclosure of the records in dispute as required to successfully invoke KRS 61.878(1)(h); however, KSP belatedly satisfied its burden of proof in responding to her appeal.
2 This office noted that before and since Skaggs , above, was issued, the Attorney General "has consistently applied the exemptions contained in KRS 17.150(2) and KRS 61.878(1)(h) [footnote omitted] to situations involving a motion for post-conviction relief." 09-ORD-104, p. 5 (citations omitted). However, this office had not previously been called upon "to address a situation in which there was no indication that such a motion was either pending or imminent. " Id.