Request By:
William M. Arnold
Captain
Danville Police Department
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to what records of a police department must be made available to newspapers for inspection.
First we would point out that a newspaper reporter has the same right to inspect public records as any other person, no more and no less.
Under the Kentucky Open Records Law, KRS 61.870-61.884, a public agency is required to make all of its records available for inspection by any person as long as the records are not exempted either by KRS 61.878 or by some other statute. The only exemption in the Open Records Law which we believe applies to police departments is KRS 61.878(1)(f) which reads as follows:
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting an investigating statutory or regulatory violation if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870-61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or imped the exercise of rights granted by KRS 61.870-61.884."
In OAG 77-102 we stated that the records of a police department which are referred to as the "police blotter" or "incident reports" are open to public inspection.
The records of the police department on a particular case may be held confidential while the case is pending. The Kentucky Criminal Statistics Statute provides, in part, as follows:
"Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) the name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) information of the personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) information which may endanger the life or physical safety of law enforcement personnel; or
(d) information contained in such records to be used in a prospective law enforcement action.
"(3) When a demand for the inspection of such records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." KRS 17.150.
We would note that while incident reports should be open to public inspection, there is no requirement that a police department prepare a special report for the news media unless it sees fit to do so voluntarily. The police are not required to reveal information of an evidentiary nature on a case which is still pending.
You also ask our opinion as to whether it is proper for a newspaper reporter to attempt to contact victims of a crime and obtain information evidentiary in nature for publication in the newspaper or for any other purpose.
The First Amendment of the United States Constitution guarantees freedom of the press, and this is generally considered to mean that a reporter can get information from any source or from any person. However, a crime victim or a witness is not required to talk to a reporter if he chooses not to do so. There is nothing wrong with a prosecutor or a police officer advising a person to not disclose information about the crime pending the police investigation and the prosecution. A person cannot be ordered to keep quiet unless the order comes from a judge and for good cause. A reporter should not harass a person who chooses not to talk about a crime. Publicity about a crime sometimes makes it difficult to obtain an impartial jury and to conduct a fair trial. Nevertheless, it is not improper for a reporter to interview a person about a crime or for a newspaper to publish any information about the crime which it has collected.