Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, 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 17.150(2) in denying Everett Simpson's request for certain documents detailing forensic testing performed and the results thereof on evidence submitted by the Lexington Fayette County Urban County Government Division of Police. For the reasons that follow, we find that the State Police properly denied Mr. Simpson's request.
In responding to Mr. Simpson's request on behalf of the KSP, Debborah M. Arnold, Official Custodian of Records, advised him:
By letter dated April 5, 2004, you requested copies of examinations performed on the exhibits listed in an attached Lexington Fayette Urban County Division of Police Property and Evidence Record you provided. The Kentucky State Police forensic laboratory completed the examinations of the evidence provided. However, you will have to make an open records request to the Lexington Fayette Urban County Division of Police Department, as they are the submitting agency of the evidence in question. Their address is 150 East Main Street, Lexington, Kentucky 40507. 1
After receipt of this response, Mr. Simpson submitted a request to the LFUCG Division of Police, requesting a copy of the examination and results of item #7, the gun shot residue from Bonofacio Gamas-Cruz. The Division of Police advised Mr. Simpson that this record did not exist because the Division did not request the KSP to do a forensic test on this item of evidence and, thus, denied the request on the basis that the record did not exist. We affirmed this request in a companion appeal, 04-ORD-128. 2
Mr. Simpson initiated the instant appeal, asking this office to compel the KSP to produce the records of the requested forensic examinations and test results.
After receipt of the notification of appeal and the letter of appeal, Roger Wright, Office of Counsel, KSP, provided this office with a response to the issues raised in the appeal. In his response, Mr. Wright advised:
The undersigned has consulted with KSP Central Forensic Lab and has determined that KSP does possess test results for evidence submitted by the LFUCG Police in relation to case number 99-79910. For future reference, these lab reports are identified by KSP Central Lab case numbers 99-0-10882 and 99-0-10956.
The undersigned has further consulted with the LFUCG Police to ascertain their position as to the disclosure of the subject reports, which are concurrently-maintained records of both KSP and LFUCG Police. LFUCG Police advises that there are still pending appellate proceeding with respect to this particular matter. As such, it is the position of KSP that these reports are not currently releasable pursuant to KRS 61.878(1)(h) and KRS 17.150(2) .
We are asked to determine whether the actions of the KSP relative to Mr. Simpson's request for the forensic test result reports violated the Open Records Act. For the reasons that follow, we conclude that the KSP's denial of the request did not violate the Act.
In 99-ORD-93, we stated:
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). 3 See e.g., OAG 76-424; OAG 82-356; 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.
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" is, in our view, broad enough to extend to forensic test result reports. 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 forensic test result reports may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
The KSP stated that it has been advised by LFUCG Division of Police that there is still a pending appellate proceeding with respect to this matter. This brings this appeal within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h), and records and reports generated in the course of the investigation, including the forensic test result reports. As such they remain exempt from disclosure until the appellate proceeding is completed and "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391. This Office has also recognized that documents are exempt from inspection pursuant to KRS 61.878(1)(h) even though the agency in possession of the document is not the agency involved in a prospective law enforcement action or administrative adjudication. OAG 83-39; OAG 90-97; 93-ORD-104. Accordingly we affirm the KSP's denial of Mr. Simpson's request for the forensic test result reports.
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 In his request, Mr. Simpson specifically requested a copy of the examination and results in the Lexington Fayette Urban County Division of Police Property and Evidence Record of item #7, the gun shot residue from Bonofacio Gamas-Cruz.
2 To facilitate our review of this appeal, we requested the KSP to provide this office with copies of the forensic examinations at issue for our review. Our in camera review of the KSP Report of Forensic Laboratory Examinations confirms that item #7, the gun shot residue from Bonofacio Gamas-Cruz, was not submitted to the KSP for forensic testing by the LFUCG Division of Police.
3 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.