Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Fayette Urban County Government Division of Police properly relied on KRS 61.878(1)(h) in partially denying Les Coleman's June 17, 1999, request for records pertaining to the investigation of a 1993 fatal accident involving Timothy D. Cormney, and records relating to Kevin Robinson, the detective who investigated the accident. For the reasons that follow, we find that LFUCG's reliance on KRS 61.878(1)(h) was misplaced, and that unless "the possibility of further judicial proceedings in this case remains a significant prospect,"
Skaggs v. Redford, Ky., 844 S.W.2d 389, 391 (1992), the records contained in those files must be disclosed "unless exempted by other provisions of KRS 61.870 to 61.884. . . ." KRS 61.878(1)(h).
In its July 6, 1999, response, LFUCG agreed to furnish Mr. Coleman with copies of the front page of the complaint and offense report from the Timothy Cormney investigative file, as well as training records relating to Detective Robinson, but denied him access to all remaining records in its investigative files on the basis of KRS 61.878(1)(h). LFUCG Corporate Counsel Glenda Humphrey George explained:
Pursuant to Skaggs v. Redford , [above], files of criminal defendants convicted of crimes are exempt from public inspection until after the defendants serve their sentences. Mr. Cormney is currently incarcerated. His next parole eligibility date is September 1999 and his sentence expires in April 2000. Absent a court order, the above referenced files is exempt from public inspection.
Shortly after he received this response, Mr. Coleman initiated an open records appeal.
In a follow-up letter directed to this office, LFUCG elaborated on its position. On behalf of the Division of Police, Ms. George expressed the view that KRS 61.878(1)(h) is internally inconsistent. She observed:
Pursuant to the literal terms of [KRS 61.878(1)(h)], once enforcement action is complete or a decision is made to take no action, police investigation files are open for public inspection if they are not exempt pursuant to another section. [Footnote omitted.] However, once enforcement action is complete or a decision is made to take no action, any files compiled or maintained by the Commonwealth Attorney or the County Attorney which relate to criminal investigations or criminal litigation are exempt from public inspection. . . . Once a case is closed, it makes no sense to say that a requester cannot have a copy of the Commonwealth Attorney's file or the County Attorney's file, but that they can have access to the same documents by requesting them from the Division of Police. . . . By allowing criminal defendants and members of the public access to police investigation files which are used by prosecutors to prosecute defendants charged with crimes, the public is allowed to walk through to [sic] back door to gain access to information that is otherwise exempt.
In support of LFUCG's position, Ms. George cites Skaggs v. Redford , above, which she construes to exclude from public inspection prosecutors' files and police investigation files "until a criminal defendant serves his sentence or the defendant is executed," and a 1994 notice issued by the Prosecutor's Advisory Council confirming this position.
Nevertheless, Ms. George notes, since the Skaggs decision was issued, and the 1994 notice released, the Attorney General:
has issued several opinions taking the position that Skaggs does not apply to the files of police departments, and that police departments must release their investigation files once a decision is made to take no action or enforcement action is complete. In addition, the Attorney General has opined that in order for an agency to refuse to release a closed criminal investigation file, the agency bears the burden of proving that the agency will be harmed if the records are released. See , 94-ORD-131 (sheriff's department files are not exempt from public inspection after the criminal investigation or litigation has been completed); and 97-ORD-101 (neither Skaggs nor the 1994 Attorney General Advisory relieve an agency invoking KRS 61.878(1)(h) of its duty to show that it would be harmed if the information is released.)
It is LFUCG's position that:
the Attorney General, like the General Assembly, has reached a conclusion that provides inconsistent results. The primary focus by both the Attorney General and the General Assembly has been to provide protection to the files of prosecutors; however, it seems as though little thought has been given to the role that the police play in aiding prosecutors in preparing their case and gathering documents for their files. If it were not for the Division of Police investigation files, prosecutors would have no cases to prosecute.
Moreover, LFUCG notes, Mr. Coleman is editor of World Citizen News the official publication of the World Citizen Foundation, Washington, D.C., and his "intent is to expose some type of wrongdoing in the prosecution of the case against Mr. Cormney." If he is successful in exposing wrongdoing, Ms. George concludes, Mr. Cormney's case could be reopened. "This possibility alone," she asserts, "qualifies as prospective law enforcement action and is sufficient to exempt the police investigation files."
LFUCG urges the Attorney General to declare that the investigative file relating to the 1993 fatal accident involving Mr. Cormney which is in the custody of the Division of Police is exempt from public inspection pursuant to KRS 61.878(1)(h) "because of the probability of prospective litigation." In addition, LFUCG requests that the Attorney General rule "that the Cormney police investigation file is also exempt from public inspection pursuant to the Skaggs case because the documents prepared by and obtained by the Division of Police in the process of investigating a crime become part of the prosecution file when a determination is made to try a particular individual for breaking the law." We find neither of these arguments persuasive.
By its express terms, KRS 61.878(1)(h) authorizes the nondisclosure of:
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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. 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 construing this exception, along with the eleven other exceptions codified at KRS 61.878 (1)(a) through (l), the Attorney General has been guided by the statement of legislative intent and rule of construction found at KRS 61.871 which provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
This statement of legislative intent is premised on the notion:
Government is the servant of the people and not the master of them and access to information concerning the conduct of the people's business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky.
Preamble to Open Records Act (HB 138, 1976 Acts). Echoing this view, in 1992 the Kentucky Supreme court declared:
The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky. 826 S.W.2d 324, 328 (1992).
With specific reference to KRS 61.878(1)(h), these principles have prompted the Attorney General to delineate a three part test which a public agency must satisfy in order to successfully raise the exception:
The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.
Failure to establish that the disputed records satisfy each part of the three part test has resulted in adverse rulings by the courts and this office in various factual contexts. See, for example,
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky 830 S.W.2d 373 (1992) (University improperly relied on KRS 61.878(1)(h) in denying newspaper access to records compiled in response to NCAA investigation since it was not a law enforcement agency or an agency involved in administrative adjudication and therefore did not satisfy the first part of the three part test); 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 99-ORD-162 (Jefferson County Police Department improperly relied on KRS 61.878(1)(h) in denying requester access to maintenance records relating to radar unit used by police officer in issuing speeding citation because records were not "compiled in the process of detecting and investigating statutory or regulatory violations").
Thus, since the Open Records Law was enacted in 1976, this office has taken the position that investigative records of law enforcement agencies are, in general, subject to public inspection unless specifically exempted by statute. See, for example, OAG 76-478 (holding that "police departments do not have the authority to act privately, confidentially, or secretly unless expressly authorized in particular kinds of cases"); OAG 76-511 (holding that "the sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions").
Nevertheless, this office has also recognized that the public's right to know that its law enforcement agencies are properly executing their duties must, in cases of ongoing investigations and cases in which enforcement action has not been completed, yield to the state's interest in insuring that investigations are not compromised, officers and informants are not imperiled, and prosecutions are brought to a successful conclusion. See, for example, OAG 76-424; OAG 83-356; OAG 85-93; OAG 86-47; OAG 87-15; OAG 90-64; OAG 92-46; 95-ORD-69; 99-ORD-93. In each of these decisions, the Attorney General held that records pertaining to a criminal investigation may be withheld pursuant to KRS 61.878(1)(h) until prosecution is completed, and that prosecution is not completed until the defendant's conviction has been upheld by the last appellate court to which the conviction can be taken. OAG 83-356, citing
Cornett v. Judicial Retirement and Removal Commission, Ky., 625 S.W.2d 564 (1982).
In Skaggs v. Redford , above, the Kentucky Supreme Court considered whether the Commonwealth's defense of a collateral attack on a criminal conviction is part of the prosecution of the criminal case. The Court concluded that it was declaring that records pertaining to the case could properly be withheld " so long as the possibility of further judicial proceedings in the case remains a significant prospect." Skaggs at 391. In Skaggs , the request for records was directed to the Commonwealth's Attorney whose criminal investigative and litigation records have, since the 1992 amendment to KRS 61.878(1)(h), formerly KRS 61.878(1)(g), enjoyed permanent exclusion from public inspection. However, the case was decided under KRS 61.878(1)(h), as it appeared before the 1992 amendment. Thus, the question of the propriety of the agency's decision to withhold the records turned on whether prosecution had been completed. This is the same standard that has consistently been applied by the Attorney General in determining the propriety of law enforcement agencies' denials of open records requests for investigative records.
As LFUCG correctly notes, at page 390 of that decision the Court concluded that "the State's interest in prosecuting the appellant is not terminated until his sentence has been carried out." However, it is the opinion of this office that the phrase "carried out" is not, as LFUCG urges, synonymous with the phrase "served out." To promote the objects of the Act and implement the Legislature's intent, we find that the Court's language must be harmonized with subsequent language appearing in the decision, relative to "postponing availability of the Commonwealth's Attorney's file . . . so long as the possibility of further judicial proceeding. . . . remain a significant prospect," by construing the phrase "when the sentence has been carried out" to mean "when there remains no significant prospect" of further judicial proceedings. This interpretation is consonant with the express language of KRS 61.878(1)(h) itself, relative to the custodian's duty to release the records "after enforcement action is completed," and not to use the exception "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884," and the specific rule of construction codified at KRS 61.871, relative to the requirement that the exceptions "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or otherwise."
Simply stated, Skaggs v. Redford , above, cannot be construed to authorize blanket nondisclosure of criminal investigative files of law enforcement agencies until a defendant has served out his sentence or been executed. To the extent that the 1994 Prosecutor's Advisory Council notice is inconsistent with this position, it cannot be relied upon and does not represent the Attorney General's official opinion in the discharge of his KRS 61.880(2) duties. Skaggs , above, authorizes law enforcement agencies to withhold investigative records upon a clear showing that further judicial proceedings remain a significant prospect. Accord, 99-ORD-93 (Kentucky State Police properly withheld investigative files at the request of the Commonwealth's Attorney because appeals were pending). To paraphrase a recent decision of the United States Ninth Circuit Court of Appeals: The value of information is partly a function of time, and so long as the Open Records Act is the law, we cannot effectively repeal it by a construction that vitiates any practical utility it may have. Daniel J. Fiduccia; Edward H. Kohn v. United States Department of Justice , et al. No. 97-16420 (CA9, 1999).
We remind LFUCG that resolution of the issue of the propriety of disclosure "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 of Kentucky Ky. App., 902 S.W.2d 825, 828 (1994). "At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink at 829. As a direct corollary of this proposition, "the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners at 328. Mr. Coleman's purpose in requesting access to the files thus has no bearing on the outcome of this appeal. LFUCG having failed to establish that there is any significant prospect of further judicial proceedings in Mr. Cormney's case, we find that this policy is served by disclosure of the Division of Police investigative file to Mr. Coleman at this time.
We further find that the Cormney investigative records in the custody of the Division do not become part of the prosecution file and thus enjoy permanent protection from public inspection. Having closed one door to these records, for reasons that are not apparent from the statute, the legislature left another door open to obtain the records through the law enforcement agency itself, after enforcement action is completed, to promote the purposes for which the Open Records Act was enacted and insure agency accountability in the broad context of law enforcement. The Attorney General has recognized that this is entirely proper since the law was enacted, and more importantly, since it was amended in 1992. Although Mr. Coleman cannot now, nor can he ever, obtain access to the Commonwealth's Attorney's criminal investigation and litigation records in the Cormney case, he is entitled to review the Lexington Fayette Urban County Government Division of Police's investigative files in that case inasmuch as enforcement action is completed and LFUCG has failed to present proof that there is a significant prospect of further judicial proceedings. Accordingly, there is no possibility that the state's interest in prosecuting Mr. Cormney will be compromised, and the purposes for which KRS 61.878(1)(h) was enacted are no longer served by nondisclosure.
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.