Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
On behalf of his clients, Wallins Creek Mining and Liberty Mutual Insurance Group, W. Barry Lewis appeals the Kentucky State Police's denial of their request for records relating to the death of Charles Edward Howard on June 26, 1997, in Harlan County, Kentucky. In support of its denial, KSP cited KRS 61.878(1)(l) which excludes from the operation of the Open Records Act public records made confidential by enactment of the General Assembly. It was KSP's position that KRS 61.878(1)(l) operates in tandem with KRS 17.150(2) to authorize nondisclosure of records relating to Mr. Howard's death while the investigation is ongoing. For the reasons which follow, we find that KSP properly denied the request on the basis of the cited provisions.
Among the public records which may be excluded from inspection are those described in KRS 61.878 (1)(l). That provision authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 17.150(2) restricts access to intelligence and investigative reports maintained by criminal justice agencies "until prosecution is completed or a determination not to prosecute has been made." Portions of the reports may be subject to continuing exclusion, even after prosecution is completed or the decision not to prosecute has been made, if they fall within the parameters of KRS 17.150(2)(a), (b), (c), or (d), but refusal under these circumstances must be justified with specificity. KRS 17.150(3).
Read together, KRS 61.878(1)(l) and KRS 17.150(2) authorize KSP and other criminal justice agencies to withhold investigative files in their custody while the case is active. Numerous decisions of this office support this view. For example, in OAG 78-639 the Attorney General affirmed a Commonwealth's Attorney's denial of a request for records pertaining to a criminal investigation, noting that "the Open Records Law does not require a prosecutor to submit his papers about a case still pending to public inspection. " In OAG 83-123, we affirmed the Frankfort Police Department's denial of an investigative file involving a shooting incident, explaining that "the investigative files which are to be open to public inspection are those pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him." In OAG 83-481, we affirmed the Jefferson County Police Department's denial of a request for records relating to an arrest for possession of stolen property, holding that the right of inspection recognized in KRS 17.150(2) is contingent upon the conclusion of the prosecution or a decision not to prosecute. See also, OAG 85-93; OAG 86-59; OAG 86-81; OAG 91-8; OAG 91-132; OAG 92-46; 96-ORD-25.
This office has also affirmed KSP's denial of requests for records relating to ongoing investigations submitted by attorneys representing interested parties on the basis of KRS 61.878(1)(l) and KRS 17.150(2). Thus, in OAG 87-35, we upheld KSP's denial of an attorney's request to inspect records relating to an arson investigation. The attorney represented the estate of an individual killed in the fire. Nevertheless, we held that denial was proper "at this time as the investigations pertaining to the death and the fire have not yet been completed and a determination has not been made as to whether legal action will be taken." OAG 87-35. Similarly, in OAG 88-27 we upheld KSP's denial of an attorney's request for photographs taken at an accident scene. See also, OAG 90-104. We reached the same conclusion in OAG 90-143, holding that KSP properly denied an attorney's request for investigative records relating to a death which had occurred one and one-half years before.
As Kentucky's courts have recognized, analysis of the propriety of an agency's denial of an open records request "does not turn on the purposes for which the request for information is made or the identity of the person making the request."
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994). However compelling the requester's need for the record, it is the nature of the record that is controlling. In the appeal before us, that record is excluded from inspection by the public until the prosecution is completed or a decision not to prosecute is made. In a letter to this office dated January 27, 1998, KSP confirmed that its investigation into the death of Charles Edward Howard is still active. We therefore conclude that KSP properly denied Mr. Lewis's clients' request for the investigative file.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.