Opinion
Opinion By: Andy Beshear,Attorney General,J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police Forensic Laboratory ("KSP") violated the Open Records Act ("Act") in the disposition of a request submitted by Michelle Bryant ("Appellant"). KSP violated KRS 61.880(1) 1 by failing to respond to Appellant's amended open records request in writing and within three business days. Adopting our decisions in 03-ORD-126 and 14-ORD-085, we find that KSP lawfully denied Appellant's request for DNA testing and analysis records because those records are exempt from the Act pursuant to KRS 17.175(4), 2 operating in tandem with KRS 61.878(1)(l). 3 KSP made records inadvertently omitted available after the filing of the appeal, rendering issues related to those records moot, pursuant to 40 KAR 1:030 Section 6. 4
On January 29, 2019, Appellant submitted a request for copies of records to the KSP DNA Lab Records Custodian. Appellant stated that the "request is being made to facilitate independent forensic evaluation of your lab's previous service regarding case # [07-CR-000266] identified above." On February 13, 2019, KSP responded by providing Appellant a CD with copies of some requested records. However, KSP denied copies of all records related to DNA testing and analysis, pursuant to KRS 17.175(4).
On February 20, 2019, Appellant submitted an amended open records request to KSP. Appellant stated, "I am enclosing an order from Laurel Circuit Court directing the disclosure and production of any and all 'reports and accompanying documentation, including underlying data and laboratory notes.'" KSP did not respond to the amended request. Appellant also stated that KSP omitted material pertaining to firearms experts and ballistics testing from the response to her previous request. Appellant requested that KSP "correct these deficiencies." However, KSP did not respond to the amended request.
On March 18, 2019, Appellant submitted an appeal of the dispositions of her requests. Appellant first argued that KSP had failed to respond to her amended request. Appellant then argued that the circuit court order required KSP to disclose the DNA testing and analysis records, including underlying data and laboratory notes. Appellant stated, "it can reasonably be assumed that [KSP] record custodian ( sic ) is relying upon the erroneous belief that the DNA records sought are exempt from disclosure. However, pursuant to the Laurel Circuit Court order attached to the amended request the Commonwealth of Kentucky was ordered to produce laboratory reports from the prior DNA testing as well as and ( sic ) reports and accompanying documentation, including underlying data and laboratory notes."
On April 8, 2019, Staff Attorney Cody Weber responded to the appeal on behalf of KSP. Regarding the DNA testing and analysis records, Mr. Weber reiterated KSP's denial pursuant to KRS 17.175(4). He argued that Appellant seeks to enforce an order granted by the Laurel Circuit Court in a criminal action, pursuant to KRS 422.285(8), 5 and "[t]he motion, order, and statute have no effect on open records requests." Mr. Weber cited our decision in 14-ORD-085 in support of his argument that, "Appellant in this case is?invested in no greater right of access to the laboratory reports than any other open records requester. "
Regarding the missing responsive records, Mr. Weber stated, "some of the records responsive to the Appellants request did not properly copy onto the CD previously provided." On April 9, 2019, Mr. Weber provided our office a copy of the CD that KSP provided to Appellant. He also included an inventory of the CD contents, and verification that KSP replaced the faulty CD provided to Appellant. However, Mr. Weber again stated that KSP withheld the DNA testing and analysis records pursuant to KRS 17.175(4).
In its response to the appeal, KSP did not dispute that the public agency failed to respond to the amended request. Therefore, we find that KSP committed a procedural violation of the Act. KRS 61.880(1) requires that a public agency issue a written disposition of a request for public records within three days, excluding weekends and legal holidays. KSP violated KRS 61.880(1) by failing to provide a written response to the amended request within the required timeframe.
KSP properly denied copies of all DNA testing and analysis records in its possession. The issue presented in this case is similar to that presented in 03-ORD-126, a copy of which is attached hereto and incorporated by reference. In that case, the Attorney General affirmed the denial of a request for DNA laboratory reports pursuant to KRS 17.175(4). In our analysis, we explained that, "[i]n enacting KRS 17.170 and 17.175, the General Assembly determined that [the purpose underlying its enactment] could best be served by establishing a broadly worded confidentiality provision in the law that extends to any 'records produced from samples' received from the Department of Corrections in compliance with KRS 17.170 and 17.175, and samples from other sources, and prohibiting disclosure of those records for any purpose other than 'law enforcement purposes.'" 03-ORD-126, p. 5. We recognized that the broad application of the exemption therefore "bars [the requesters] access to 'records produced from the samples' collected for DNA testing, including [the defendant's] DNA profile record and report, the technician's handwritten notes relating thereto, control sample report, and record and reporting in the Casework and Convicted Offender Indexes." Id. , p. 6. Accordingly, KSP properly withheld the DNA analysis and testing results, and all other responsive records produced from the DNA source samples.
Appellant argues that a Laurel Circuit Court order compelling release of the responsive records overrides the application of KRS 17.175(4). We addressed this argument in 14-ORD-085, a copy of which is attached hereto and incorporated by reference. In that case, we determined that, "notwithstanding the existence of a court order directing the prosecution to provide [the criminal defendant] with a copy of the DNA reports, we find that [the requester] is invested with no greater right of access to the laboratory reports than any other open records requester. " 14-ORD-085, p. 2. The express terms of KRS 17.175(4) establish that DNA records are not public records, but shall be confidential and exempt from the provisions of KRS 61.870 to 61.884. See Id. , p. 2; 10-ORD-172, p. 2. Any dispute concerning enforcement of the Laurel Circuit Court's order should be addressed to, and resolved by, that court. See 14-ORD-085, n. 2. Accordingly, KSP did not violate the Act when it denied the request for the DNA testing and analysis records.
This matter is moot regarding the firearms expert and ballistics testing material inadvertently omitted from the response to Appellant's first request. Appellant requested that KSP correct its deficient response, and the record shows that KSP provided Appellant a CD containing all of the inadvertently omitted responsive records during the appeal. In accordance with 40 KAR 1:030 Section 6, any issues relating to those records are now moot.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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