Request By:
Hon. Frank Trusty II
Commonwealth Attorney
Sixteenth Judicial Circuit
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Robert Fogarty, The Kentucky Enquirer, has appealed to the Attorney General, pursuant to KRS 61.880, your denial of inspection of certain public records in your custody, or in the custody of Mr. Robert Reichert, Kenton County Coroner. The records are described as the autopsy reports of the coroner pertaining to Georgina Manning who died in Kenton County on May 17, 1982. By letter dated August 10, 1982 you denied the request to inspect the described records stating that your denial was based on KRS 61.878(1)(f) which exempts from mandatory public disclosure records of law enforcement agencies compiled in the process of detecting or investigating statutory violations if the disclosure of the information would harm the agency by the premature release of information to be used in a prospective law enforcement action.
In prior opinions, OAG 78-28 and 81-149, we gave our opinion on the release of the coroner's inquest report required to be filed with the circuit court clerk under KRS 72.060.
Since KRS 72.060 and other statutory sections in KRS Chapter 72 have been repealed or amended by the General Assembly in the 1978 and the 1982 sessions OAG 78-28 and 81-149 are no longer operative. We, therefore, take this occasion to address the subject of coroner autopsy reports under the statute currently in effect.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that a coroner's autopsy report is exempt from the requirement of mandatory public disclosure by the statute you cited, KRS 61.878(1)(f).
KRS 72.060 which required the coroner to file his inquest report with the circuit court clerk has been repealed, effective June 17, 1978. The General Assembly of 1978 created a new section, KRS 72.420, authorizing the coroner, in his discretion, to order an inquest in any coroner case. Subsection (3) of the statute reads as follows:
"In the event the jury returns a verdict of murder, manslaughter, or other criminal acts, the coroner shall arrest the named individual or notify the appropriate law enforcement authority to arrest such individual to be dealt with according to law. A copy of the verdict shall be filed with the appropriate circuit clerk. "
It is our opinion that when the coroner files a copy of the verdict with the circuit court clerk as provided by KRS 82.420(3) the verdict is a record required to be open for public inspection.
Autopsy reports, objects, medical specimens or other articles are not required to be open to public inspection. KRS 72.020(2) provides as follows:
"The coroner, or his deputy or designee, shall take possession of any objects, medical specimens or articles which, in his opinion, may be helpful in establishing the cause of death, and he can make or cause to be made such tests and examinations of said objects as may be necessary or useful in determining the cause of death. In the event that a criminal prosecution arises, all such objects and articles together with reports of any examinations made upon them, shall be retained by the coroner until their production into evidence is required by the prosecuting authority, unless otherwise directed by written order of the court in which such prosecution is pending."
KRS 72.025 was enacted effective July 15, 1982 and deals with circumstances requiring a post mortem examination to be performed by the coroner. Under KRS 72.020(2), which we have quoted above, the coroner shall retain the objects and reports resulting from a post mortem examination until their production into evidence is required by the prosecuting authority. The coroner and the prosecuting authority may keep intelligence and investigative reports confidential until such time as the prosecution is completed or a determination not to prosecute has been made. KRS 17.150(2). Thereafter, such records are subject to public inspection but portions of such records may be withheld from public inspection if such inspection would disclose any of the following:
"(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance the wholesome public interest or illigimate 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 prospectve law enforcement action." KRS 17.150(2).
In summary, a coroner's verdict filed with the circuit court clerk is open to public inspection; objects and reports, such as autopsy reports, are to be retained by the coroner and the prosecuting authority and are not required to be made open for public inspection until prosecution is completed or a decision not to prosecute has been made.
It is our opinion that you acted in accordance with the Open Records Law, KRS 61.870 to 61.884, and the criminal records law, KRS 17.150, in denying inspection of the requested autopsy report. As directed by statute, a copy of this opinion is being sent to the requester who has the right to challenge it in court under KRS 61.880(5).