Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in denying Johnny R. Phillips' February 20, 2019, request for the following:
A) The entirety of the attached [Discovery List for Expert DNA Case Review, including[:] 1. "[a] complete copy of the laboratory case file including, but not limited to, the chain of custody, laboratory notes, forms, paperwork, electropherograms . . ., allelic tables, statistics, tech reviews and report[;] 2. A copy of the laboratory procedural manual in effect at the time of testing [;] 3. A copy of the Quality Assurance Manual in effect at the time of testing [;] 4. Records of unexpected allele detection or possible contamination[;] 5. Copies of résumés, job descriptions[, etc.] of the analysts and reviewer[s] performing testing and review in this case[; and] 6. A copy of Certification of Accreditation[;]
B) Any/all communications between your lab, records custodians, or other employees & supervisors with any other Commonwealth agencies, which can be said to reasonably relate to [Kentucky Medical Examiner's Case No. ME-C 2007-602, Laurel Circuit Court Indictment No. 07-CR-266, and Laurel County Sheriff's Department Case No. 2007-0-810] & previous DNA testing including the entire February 25, and/or February 26, 2014, electronic mail/electronic files/CDR, provided to the Laurel County Commonwealth's Attorneys, in compliance with the attached Circuit Court Order and beast [sic] website materials, and case jackets in their entirety; [and]
C) Anything generated by Allison Tunstill, Forensic Specialist I or Whitney L. Collins as outlined herein or which can be said to qualify as their work product materials generated relating to this case. 1
Pursuant to KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), the DNA laboratory reports, the underlying data, and the accompanying documentation are confidential and exempt from disclosure. The instant appeal presents no basis to depart from the reasoning of 03-ORD-126 and 14-ORD-085. Accordingly, this office affirms the denial by KSP of Mr. Phillips' request.
In his March 20, 2019, letter of appeal, Mr. Phillips made allegations of collusion among public agencies, including the KSP Central Laboratory Branch, none of which are justiciable in the context of an Open Records Appeal. See 15-ORD-164. Likewise, this office makes no finding as to Mr. Phillips' argument relating to any issues resolved in Milburn v. Kentucky State Police , No. 13-CI-0047 (Franklin Cir. Ct., Feb. 18, 2015), as that opinion is only binding on the named parties. See 04-ORD-066; 07-ORD-132. "Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected" in 03-ORD-126 and 14-ORD-085, among others, regarding application of KRS 17.175(4). See 16-ORD-064. Holding otherwise "would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. To hold thus promotes certainty in the application of established legal principle . . . ." 07-ORD-132, p. 7; 11-ORD-204 (conflicting opinions from the same circuit "amply illustrate why this office has taken the approach of continuing to follow existing precedent, . . . until a published opinion by either the Supreme Court or the Court of Appeals to the contrary is rendered").
Here, as in 03-ORD-126 and 14-ORD-085, this office finds the plain and unambiguous language of KRS 17.175(4) is controlling; the January 23, 2014, Laurel Circuit Court Order (directing the prosecution to provide him with a copy of the DNA reports) attached to Mr. Phillips' appeal does not alter this conclusion. In 14-ORD-085, involving a request from Racquel Hatfield in her capacity as Mr. Phillips' legal counsel to KSP for "a copy of 'all laboratory reports, all underlying data, and any accompanying documentation . . . generated in connection with Laboratory # 07-C-0968 . . .' relating to Johnny Phillips," this office found that "[a]ny dispute concerning enforcement of the court's order should be addressed to, and resolved by, the court." 14-ORD-085, p. 2, n. 2. The Attorney General relied upon 03-ORD-126 in reaching this determination. In that decision, this office granted deference to "the judicial rules of practice and procedure that apply to [criminal] cases," and further noted that for purposes of analysis under the Open Records Act, the requester "st[ood] in the same shoes as any other open records requester, " though she represented the subject of the DNA testing in the appeal of his criminal conviction. 03-ORD-126, p. 6. The instant appeal presents no factual or legal basis to depart from the line of decisions referenced above. "[N]otwithstanding the existence of a court order directing the prosecution to provide Mr. Phillips with a copy of the subject DNA reports," the Attorney General again finds that KRS 17.175(4) vests Mr. Phillips and his counsel "with no greater right of access to the laboratory reports than any other open records requester. " 14-ORD-085, p. 2; 10-ORD-172 (affirming the denial by KSP of a request for DNA testing reports pertaining to a criminal conviction pursuant to KRS 17.175(4) though requester was the subject of the DNA tests and records).
Pursuant to KRS 17.175(4), "DNA identification records produced from the samples are not public records [defined at KRS 61.870(2)] but shall be confidential and used only for law enforcement purposes." (Emphasis added). This provision also expressly provides that "DNA identification records shall be exempt from the provisions of KRS 61.870 to 61.884 [the Open Records Act] ." (Emphasis added). KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." When viewed in conjunction, these statutory provisions validate the position set forth by KSP. In 03-ORD-126, this office acknowledged "that there is a paucity of available legal authority to guide us in resolving" the question presented here, and in that case, but found that "the interpretation of KRS 17.175(4) which KSP advances 'effectuates the plain meaning and unambiguous intent expressed in the law.'" 03-ORD-126, p. 5 (citations omitted). The reasoning found in 03-ORD-126, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented. KSP properly denied Mr. Phillip's request on the basis of KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Either party may appeal 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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