Request By:
Sgt. Glen E. Dalton
Kentucky State Police Post 11
11 State Police Road
London, Kentucky 40741-9008
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of October 26, 1989, Benny Lee Hodge, a prisoner (No. 32 835) at the Kentucky Penitentiary at Eddyville, has appealed your denial of what was apprently his request for a copy of the case file regarding Kentucky State Police Post 11 Case No. 11-87-2005.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency " . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
Although the Kentucky State Police response denying inspection of a case file may have been consistent in substance with an exception upon which denial of inspection could be based, the agency failed to act consistent with Open Records provisions by not citing the specific exception upon which it relied to deny inspection.
FACTUAL BACKGROUND
Benny Lee Hodge, Prisoner No. 32 835 at the Kentucky State Penitentiary, apparently requested a copy of the "investigative report (if any) concerning the theft of [his] property" while he was in the Laurel County Jail during at least part of October and November, 1987.
You responded by Letter of October 19, 1989, advising Mr. Hodge that:
The case report which you have requested concerns an open case with an ongoing investigation. Open criminal cases are not subject to public inspection.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case we do not have information regarding the date the request was submitted. Thus timeliness of your response is not addressed here.
Although you indicated in your response that the case report requested "concerns an open case with an ongoing investigation," and that such cases were not subject to public inspection, you did not cite a specific exception from among those in KRS 61.878 as a basis for your denial of inspection.
While the reason for denial set forth in your letter of October 19, 1989 to Mr. Hodge, may well be consistent with KRS 61.878(1)(f), KRS 61.880(1) requires that an agency denying inspection of a public record include in its response, "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In your response to Mr. Hodge denying inspection of the file in question, you did not cite a specific exception relied upon in support of your denial, as called for by KRS 61.880(1). Accordingly, the Kentucky State Police failed to act consistent with KRS 61.870 to 61.884.
Your agency should promptly advise Mr. Hodge, in a manner substantially consistent with the requirements of KRS 61.880, whether or not inspection of the record(s) in question will be permitted under Open Records provisions, and if not, provide a proper explanation of such determination. Your agency should carefully review the case or case file in question to determine if denial of inspection may be properly founded upon KRS 61.878(1)(f).
In his letter of appeal regarding your denial of inspection, Mr. Hodge asked this office:
Would you please investigate this refusal and either order the State Police to release their report; or inform me as to why I am not permitted this report; or at least tell me where my rings and property are and whether or not I can get them back?
This opinion addresses only inspection of public records in accordance with Kentucky's Open Records provisions. We do not have resources or jurisdiction to investigate the situs of any of Mr. Hodge's property, or to advise upon whether he may obtain any of the property he claims.
Benny Lee Hodge or the Kentucky State Police, may have a right pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Benny Lee Hodge.