Request By:
Morris E. Burton, Esq.
Commonwealth's Attorney
313 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
John E. Pence, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy certain documents in the custody of your office.
In his letter to you dated October 9, 1986, Mr. Lence requested that he be permitted to inspect and copy the written confession of Bradley Scott Russell and any transcripts pertaining thereto in the case of Commonwealth v. Bradley Scott Russell, 86-CR-0041, a case where Russell was charged with burglary, rape and murder in connection with the death of Ms. Carlotta Rearden. Mr. Pence represents Mr. and Mrs. Charles Boler and Mrs. Boler is the sister of the deceased.
You replied to Mr. Pence in a letter dated October 17, 1986. You denied his request to inspect and copy the materials in question and in support of your position you cited KRS 17.150 (2)(b) and KRS 208.340(3).
In his letter of appeal to this office Mr. Pence pointed out that the case involving Bradley Scott Russell has been concluded and a refusal to permit inspection cannot now be based on pending legal action. See KRS 61.878(1)(f). Mr. Pence further maintains that the exceptions to public inspection and release of information set forth in KRS 17.150(2)(b) and KRS 208.340(3) are not applicable to the situation and records with which he is concerned. He states that, "KRS 208.340(3) is limited to the divulgence of information concerning juveniles by a probation officer or police officer as a witness at a trial or at a hearing of any proceedings, or the production of such records for the use at such trial or proceedings." Mr. Pence said that this statute contains an exception for cases transferred to the circuit court where the facts or records relate directly to the child's participation in the offense with which he is charged.
The undersigned Assistant Attorney General talked with you by telephone on December 17, 1986, and you advised that Bradley Scott Russell was a juvenile at the time the charges were made and when the court proceedings transpired. The case was transferred to the circuit court where Russell subsequently entered a guilty plea.
OPINION OF THE ATTORNEY GENERAL
Among those public records which are or may be excluded from public inspection by a public agency in the absence of a court order authorizing public inspection are those described in KRS 61.878(1)(j):
"Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 208.340(2) deals with a prohibition against the disclosure of information pertaining to juveniles and provides as follows:
"All police records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public. However such police records shall be made available to the family, guardian or legal representative of the child involved. Such records shall also be made available to the court, probation officers, representatives of the department, or to a representative of any public or private social agency, institution, hospital or church having a direct interest in the record or social history of the child."
You, as a Commonwealth's Attorney, are a "public agency" as that term is defined in KRS 61.870(1) and are, therefore, subject to the terms and provisions of the Open Records Law (KRS 61.870 to KRS 61.884). However, after examining the facts presented and the statutory subsection quoted above, it is clear that the materials Mr. Pence seeks to inspect are police records of a juvenile and such documents are excluded from public inspection. Furthermore, neither Mr. Pence nor his clients are family, guardians or legal representatives of the juvenile involved and they are not any of the other persons or entities who are authorized to receive police records of juveniles.
KRS 208.340(3) states:
"This section shall relieve the probation officer or police officer from divulging such facts as a witness on the trial of any case, or the hearing of any proceedings, or the production of such records for use in such trial or proceedings; except that the facts may be divulged or the records produced where the case on trial is an appeal from the juvenile court's order, or a case transferred to circuit court from juvenile session of district court pursuant to KRS 208.170, and the facts or records relate directly to the child's participation in the offense with which he is charged, if any."
Admittedly this particular subsection is somewhat confusing and as far as we can determine, there are no reported court decisions or prior opinions of this office interpreting it. After reading and considering KRS 208.340(3) we think that an argument can be made that it is not an exception to or the relaxing of the prohibitions set forth in KRS 208.340(2) against the disclosure of police records to the public generally. The exception set forth in KRS 208.340(3) does apply to a case which has been transferred to circuit court from the juvenile session of the district court. However, the exception apparently applies to material which can be divulged to a court or in court or in connection with a court proceeding, possibly only by probation officers or police officers. The statute, in the opinion of this office, does not require the release of such material to the public generally and when it is not intended for use in a court proceeding. Finally, even where release of the material is authorized, the statute uses the word "may" (permissive) as opposed to the word "shall" (required).
While not directly in point, we are nevertheless enclosing copies of OAG 77-26 and OAG 79-652, relative to the proceedings of the juvenile court. If for no other purpose, at least as far as this opinion is concerned, these two prior opinions will demonstrate that judicial proceedings involving juveniles and the provisions of KRS Chapter 208 reflect an intent to establish and preserve a high degree of confidentiality and inaccessibility as far as records of juveniles are concerned.
Normally the motive of the requesting party in desiring public records plays no part in determining whether the records should be made available for inspection. The requesting party does not have to give a reason for wanting access to the records in question. However, in connection with juvenile cases and the use of evidence in subsequent proceedings, note the limitations set forth in KRS 208.350.
Having considered the available evidence, including the letters of the parties, and the applicable statutory provisions, it is the opinion of the Attorney General that the public agency properly denied the request to inspect and copy the written confession of a juvenile pursuant to the provisions of KRS 61.878(1)(j) and KRS 208.340 as such a document is not available for public scrutiny.
As required by statute a copy of this opinion is being sent to the requesting party, John E. Pence, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).