Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Kentucky State Police ("KSP") violated the Open Records Act in denying Kelvin Roberson's June 5, 2012, request for copies of laboratory records from 1983 and 1984 in connection with a rape for which he is serving a prison sentence. Because further judicial proceedings in Mr. Roberson's case remain a significant prospect and harm to the agency could result from a premature release of these records, we find that the KSP did not substantively violate the Open Records Act.
On June 14, 2012, 1 records custodian Shiann N. Sharpe notified Mr. Roberson that an archive search would have to be made for the records and he would be notified of the status of his request within two weeks. On June 27, 2012, in a letter signed by Emily Perkins on behalf of Shiann N. Sharpe, the KSP denied Mr. Roberson's request pursuant to KRS 17.150(2) and KRS 61.878(1)(h), explaining:
It has come to the attention of this office that a Motion for Post Conviction Relief was filed in the Court of Appeals on June 13, 2012 regarding your conviction in this matter; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h).
?
It is imperative that the Kentucky State Police preserve all reports and investigative materials in the event that the conviction is overturned and remanded to the trial court for subsequent proceedings or a second criminal trial. The OAG held in 11-ORD-171 that "In 11-ORD-090...this office acknowledged that premature release of criminal investigation records in a public manner, rather than through appropriate discovery channels, could cause harm to law enforcement by jeopardizing the successful prosecution of the case." (Emphasis added.)
Because Mr. Roberson is seeking post-conviction relief from his conviction, under Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), his case is not final for purposes of the Open Records Act, and accordingly 09-ORD-030 is dispositive of the issue on appeal. A copy of this open records decision is attached and hereby adopted as the basis for our decision in the present appeal.
Mr. Roberson also argues that the records he seeks are exculpatory evidence that should have been provided to him by the prosecution under Brady v. Maryland, 373 U.S. 83 (1963). We have previously observed that whether a defendant may be entitled to obtain a record through discovery is not determinative of whether it is available under the Open Records Act, and expressed "our confidence in those rules of practice and procedure that 'require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action.'" 03-ORD-126, p. 4 (quoting Skaggs v. Redford, supra, 844 S.W.2d at 391). Accordingly, we find no violation of the Act.
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:
Kelvin Eugene Roberson, # 80523, 4-321Emily M. PerkinsShiann N. Sharpe
Footnotes
Footnotes