Request By:
Ms. Diane H. Smith
Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Gaynelle Trevino has appealed to the Attorney General's Office pursuant to KRS 61.880 your denial of her request to inspect the report complied by the Kentucky State Police in the course of their investigation into the burglary of her home on March 28, 1991.
You denied Ms. Trevino's request in a letter dated July 1, 1991, indicating that her case is considered active, and that the investigative file is therefore exempt under KRS 61.878(1)(j) and KRS 17.150(2). You confirmed that the case is still under investigation in a conversation with the undersigned which took place on July 25, 1991.
In her letter of appeal to this Office, Ms. Trevino states that she must obtain a copy of the report for tax purposes. She asks that we review your denial of her request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Ms. Trevino's request.
OPINION OF THE ATTORNEY GENERAL
Although this appeal presents a somewhat novel twist on the typical open records request to inspect investigative files in the possession of the State Police, insofar as Ms. Trevino was the victim of the crime which gave rise to the investigation, this Office has consistently held that such files are exempt from inspection while a case is active. OAG 78-639; OAG 83-123; OAG 83-366; OAG 87-15; OAG 87-35; OAG 87-66; OAG 88-27; OAG 90-143; OAG 91-50. Despite the unique circumstances of this appeal, we must adhere to that position. Accordingly, we find that your denial of Ms. Trevino's request was proper.
KRS 61.878(1)(f) exempts from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulartory 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.
Moreover, KRS 61.878(1)(j) authorizes the withholding of "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the [G]eneral [A]ssembly." The Kentucky Revised Statutes provide for such nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute at KRS 17.150(2). That same provision, at subsection (2)(d), exempts such records if inspection would disclose information to be used in a prospective law enforcement action.
As indicated, this Office has previously stated that State Police investigative files are not open to inspection while the case is pending. OAG 83-366. In that opinion at p. 2, we advised:
[Active files] . . . are . . . 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 reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-124; KRS 17.150(2).
See also OAG 85-93; OAG 86-59; OAG 86-81. Upon completion of the prosecution or after a decision not to prosecute is made, the file will be subject to public inspection unless the documents contained in it are exempt under another exception to the Open Records Act.
While we are aware that Ms. Trevino's purpose in seeking access to the investigative file concerning the burglary of her home is unlike the purpose which typically underlies such a request, we may not consider this factor in resolving an appeal under the Open Records Act. OAG 79-275; OAG 82-234; OAG 83-394; OAG 89-86; OAG 91-116. The purpose for which a person seeks access to public records is not germaine to our analysis.
Moreover, the rationale which informs the exemptions for investigative files of ongoing cases applies with equal force when the requester is the victim of the crime which gives rise to the investigation. As we noted in OAG 83-123, at p.3, citing a publication of the National Association of Attorneys General entitled Privacy: Personal Data and the Law (1976):
Investigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of their contents to the targets of investigation, which could thwart law enforcement efforts. At the same time, a nondisclosure policy is dicated by the fact that such material typically contains hearsay and uncorroborated allegations about individuals who may be innocent and whose reputation could be unfairly injured by publication.
The general rule of nondisclosure for investigative reports prior to the conclusion of criminal prosecution or a decision not to prosecute does not contain an exception for individuals who are themselves the victims of the crime which spawned the investigation.
We conclude that your denial of the request to inspect the records in question was proper. The investigation of the burglary is not complete and a determination had not yet been made as to whether legal action will be initiated. Once the investigation has been completed and the prosecution concluded, or a decision not to prosecute has been made, the records will be subject to inspection unless exempt under another recognized exception to the Open Records Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Gaynelle Trevino. She has the right to challenge it in the appropriate circuit pursuant to KRS 61.880(5).