Request By:
Charles R. McCollom, III, Esq.
Henderson County Attorney
P.O. Box 1316
Henderson, Kentucky 42420
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mike Bucsko has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Henderson County Coroner's Office.
In his letter to the Henderson County Coroner, dated November 4, 1986, Mr. Bucsko requested that he be permitted to inspect the results of any blood alcohol tests performed on the decedents Jon A. Woodard, Perry Risley and Dorothy Lou Bullock as a result of a fatal traffic accident which occurred on October 12, 1986.
You replied to Mr. Bucsko in a letter dated November 5, 1986, a copy of which was received by this office on November 10, 1986. You advised him that his request to inspect the documents and records in question was being denied at this time and you set forth three reasons in support of your decision. First, you cited KRS 17.150(2)(d) and KRS 61.878(1)(f) to the effect that the investigation of the matter is not yet complete and the case is not closed. Second, you stated that one of the three persons involved was a juvenile and information relative to a juvenile cannot be disclosed to the public. Third, you cited KRS 17.150(2)(b) and KRS 61.878(1)(a) to the effect that public records containing information of a personal nature need not be disclosed in the absence of a court order requiring disclosure where public disclosure would constitute a clearly unwarranted invasion of personal privacy.
In his letter of appeal to this office Mr. Bucsko said that the results of the blood tests involving the three persons he named are public information and the three reasons you cited are not valid under the Kentucky Open Records Law.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(f):
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations 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 to 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 impede the exercise of rights granted by KRS 61.870 to 61.884."
In OAG 83-366, copy enclosed, this office dealt with a request to examine a case file in the possession of the State Police. We concluded in part that such a case file is not open as long as the case is pending. At page two of the opinion we said:
". . . Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(f) provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-424; KRS 17.150(2)."
Numerous other opinions of this office have concluded that investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or a determination not to prosecute has been made. See, for example, OAG 86-47, OAG 85-93 and OAG 84-178, copies of which are enclosed.
While the exemption from public inspection set forth in KRS 61.878(1)(f) will apply until the litigation has been completed or until it has been decided not to litigate the matter, the documents in question would be subject to public inspection upon completion of the litigation or the making of the decision not to litigate, unless the documents may be exempted from inspection pursuant to another recognized exception to inspection. This office obviously cannot predict what will subsequently happen in this matter. However, we have previously stated that the exception to public inspection set forth in KRS 61.878(1)(a), the privacy exception, cannot be invoked, generally, to preclude the inspection of records pertaining to the results of blood and urine tests of deceased persons. A deceased person has no personal privacy rights and the personal privacy rights of living persons do not normally extend to matters concerning deceased relatives. See OAG 82-590 and OAG 86-31, copies of which are enclosed.
Your letter of denial to Mr. Bucsko stated in part that one of the deceased persons whose blood alcohol test results were requested was a juvenile. While you cited no statutory provisions supporting the confidentiality of that person's test results you did cite OAG 77-26. That opinion, a copy of which is enclosed, dealt with the confidentiality of juvenile court proceedings and the records that result from those proceedings. It referred at one point to KRS 208.340(2) which in part states that, "All police records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public." Again, since we do not know what might subsequently develop relative to the matter in question we cannot make any determinations at this point as to whether the records and documents must be released for public inspection at some future date.
It is, therefore, the opinion of the Attorney General that your denial of the request to inspect records in the custody of the coroner pertaining to the results of blood alcohol tests performed on three deceased persons was proper at this time as the investigation of the accident in question has not been completed and a determination has not yet been made as to whether legal action will be taken. Once the investigation has been completed and legal action has been completed or a decision has been made to take no legal action, the documents in question will be subject to public inspection unless exempted by another statutorily recognized exception to public inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Mike Bucsko, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).