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 Kentucky State Police properly relied on KRS 61.878(1)(h) and KRS 61.878(1)(l), incorporating the confidentiality provision codified at KRS 17.150(2) into the Open Records Act, in denying Donald Phillips's March 22, 2003 request for copies of "[a]ll investigative notes, records, files, etc . . . for Commonwealth v. Donald R. Phillips, Case No. 99-CR-0026, from the Leslie County Circuit Court." For the reasons that follow, and upon the authorities cited, we affirm KSP's denial of Mr. Phillips's request.
In her March 31, 2003 response to Mr. Phillips's request, KSP's Official Custodian of Records Diane H. Smith stated that cases 13-99-1697 and 13-99-1698, to which his request referred, "are still considered active by this agency." Citing KRS 61.878(1)(h) and (l), as well as KRS 17.150(2) , she explained that because the requested records "are part of an open case, [they] are exempt from inspection." In supplemental correspondence directed to Mr. Phillips, Ms. Smith advised that these cases "remain active and will stay in that status until all appeals are exhausted and the evidence destroyed." (Emphasis in original). She noted that "[t]he action of the Leslie Circuit Court may not be the final avenue of appeal," assuring Mr. Phillips that "[w]hen all prosecution and appeals are completed, the case will be closed and subject to inspection under the Kentucky Open Records Law."
In a letter directed to this office following commencement of Mr. Phillips's appeal, Ms. Smith responded to his argument that the case(s) cannot be considered open "as the Kentucky Supreme Court has ruled on direct appeal and denied rehearing." She observed:
In checking with the investigating officer and the special prosecuting attorney, Mr. Thom Marshall of the Kentucky Attorney General's office, I discovered that a Motion to Vacate under the Rules of Criminal Procedure, 11.42, is pending before the court. To close the Kentucky State Police cases in this matter would require disposition of evidence that may be needed in further court proceedings.
For these reasons, Ms. Smith indicated, KSP "stands by [the] denial." We find that the arguments KSP advances are fully supported by law. 1
KRS 61.878(1)(l) 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.
This provision operates in tandem with KRS 17.150(2) to exclude from public inspection "intelligence and investigative reports maintained by criminal justice agencies . . . [until] prosecution is completed or a determination not to prosecute has been made." The term "intelligence and investigative reports" clearly extends to "notes, records, and files" generated by KSP in the course of the investigation into the violations giving rise to the criminal prosecution of which Mr. Phillips was the subject. Based on a line of opinions dating back to 1976, and affirmed by the
Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), we conclude that the disputed records may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
It is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 17.150(2) as well as KRS 61.878(1)(h). See e.g., OAG 76-424; OAG 83-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69. Thus, in OAG 83-356, we stated that a criminal conviction is not final until it 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). These decisions were premised on the notion that if a criminal case is on appeal, the possibility exists of a remand for a new trial, and for this reason the prosecution is not completed.
In 1992, the Kentucky Supreme Court affirmed this position. In Skaggs v. Redford, above, the 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, reasoning that "the State's interest in prosecuting [a convicted criminal] is not terminated until his sentence is carried out." Skaggs at 390. The Court specifically rejected the argument that this interpretation of the law was "unduly harsh, because it means the more serious the criminal conviction and sentence the longer the convicted criminal's file will remain closed." Id. at 391. Instead, the Court expressed its confidence in "the judicial rules of practice and procedure that apply to [criminal] cases[s] . . . [and that] require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id.
KSP states that the records to which Mr. Phillips requests access relate to cases 13-99-1697 and 13-99-1698 and that those cases are considered active. Moreover, KSP notes, an RCr 11.42 motion is currently pending before the courts. Clearly, the disputed records qualify as records of a law enforcement agency compiled in the process of investigating statutory violations. The potential harm to KSP is predicated upon the agency's reluctance to dispose of evidence that "may be needed in further court proceedings." This brings the disputed records squarely within the parameters of KRS 61.878(1)(h) as well as KRS 61.878(1)(l), incorporating KRS 17.150(2) into the Open Records Act. Investigative notes, records, and files relating to Mr. Phillips's case may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391. We find no error in KSP's disposition of Mr. Phillips's request.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(h) excludes 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 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[.] . . . 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.