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 (KSP) properly relied on KRS 17.150(2) and KRS 17.175(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(1), 1 and KRS 61.878(1)(h) in denying Robert M. Harding's request for certain KSP records. For the reasons that follow, we find that KSP properly relied on the cited statutes and affirm its partial denial of Ms. Harding's request.
By letter dated September 21, 2005, Ms. Harding requested copies of the following documents:
1. The standard operating procedures ("SOP") used at the Central Forensic Laboratory;
2. The interpretation/reporting guidelines for DNA and other forensic tests;
3. The Quality Assurance/Quality Control ("QA/QC") manuals used at the Central Forensic Laboratory;
4. Any pertaining to, mentioning or referring to the collection, testing, and submission for registration with the Forensic Casework Index and Convicted Offender Index of the DNA sample taken from Dennis Ray Bullens (DOC inmate # 164482, SS#: [redacted] ; DOB: [redacted] , Criminal Case #: 02-CR-01168);
5. Those pertaining to, mentioning, addressing, referring to or containing references to items of evidence submitted in connection with Lexington Fayette Urban County Division of Police Case Numbers: 2002-132757 (Victim; [redacted] ) and 2002-148748. The requested documents include, but are not limited to, requests for evidence examination/requests for examination of evidence, reports of the results of preliminary and final forensic laboratory examinations, case file notes, and those noting which testing procedures were followed.
On September 26, 2005, Rick Stiltner, Official Custodian of Records, KSP responded to Ms. Harding's request advising her that the records she requested in items one through three had been obtained and would be released to her upon prepayment for copy and postage. With respect to items four and five, he further advised:
Item number four of your request is denied pursuant to KRS 17.175(4), which states that records produced pertaining to DNA samples shall be used only for law enforcement purposes and shall be exempt from the provisions of KRS Chapter 61.
Documents relating to item number five of your request pertain to an investigation that is still open and, as such, are exempt from disclosure in accordance with KRS 61.878(1)(h). Therefore, that portion of your request is also respectfully denied.
Shortly after receipt of KSP's partial denial of her request, Ms. Harding initiated the instant appeal. In her letter of appeal, she asserted in relevant part:
I am writing this letter to appeal the denial. In this particular situation, application of the exemption violates defendant's rights under sections 11 and 17 of the Constitution of Kentucky and under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution. The Sixth and Fourteenth Amendments and section 11 guarantee defendant the right to effective assistance of counsel and due process of law. The requested information is necessary in order for these rights to be protected. Specifically, defense counsel will be unable to satisfy the duty to investigate if denied access to these documents. See Rompilla v. Beard, 125 S. Ct. 2456 (2005); Williams v. Taylor, 539 U.S. 420 (2000); see also American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003), p. 6 (Guideline 1.1, Commentary, p.76 (Guideline 10.7(A)).
After receipt of notification of the appeal and a copy of the letter of appeal, Sergeant Scott Miller, Commissioner's Office, KSP, provided this office with a response to the issues raised in the appeal. In his response, Sergeant Miller advised in part:
Upon follow up with Sgt. Paul Williams of the Lexington Police Homicide division, it has been determined that 2002-148784 has been adjudicated and the information is now in the process of being gathered to be disseminated to Ms. Harding, subject to other possible permissive exemptions under KRS 61.878(1)(a), etc. The State Police does, however, renew their position on the denial of documents relating to criminal investigation 2002-132757.
Professor Harding's appeal does not challenge the applicability of the above-cited open records exemptions. Rather, this appeal presents a constitutional challenge to the denial of the disputed records on the ground that Professor Harding represents Bullens in a pending felony prosecution in the Fayette Circuit Court. Professor Harding's appeal does not address whether she has attempted to obtain the disputed documents through the discovery process available under the Kentucky Rules of Civil Procedure, or whether she has sought the records production by means of subpoena duces tecum in the pending criminal action.
The Attorney General addressed a similar request for DNA offender database information in 03-ORD-126. In that opinion, KSP's denial of DNA profile information being sought by an attorney for a convicted offender was sustained. KSP respectfully asserts that 03-ORD-126, in conjunction with the numerous prior Attorney General's opinions sustaining the denial of open criminal case records in regards to 2002-132757, (see, e.g., 04-ORD-234), is also applicable.
For the reasons that follow, we affirm the KSP's partial denial of Ms. Harding's request.
With respect to the records relating to Lexington Fayette Urban County Division of Police Case Number: 2002-148784, KSP has advised that that case has been adjudicated and the KSP has agreed to provide a redacted copy of the files to Ms. Harding. Accordingly, any issues relative to those records are now moot assuming the KSP satisfies its statutory burden of proof as to those portions redacted. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Accordingly, we will not render a decision in this regard.
With respect to the records relating to records relating to Lexington Fayette Urban County Division of Police Case Number: that 2002-132757, the KSP has advised that case is still ongoing and its reliance upon KRS 17.150(2) and KRS 61.878(1)(h) in denying access was still applicable. Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made. 04-ORD-114, p. 9. Since Case Number 2002-132757 is still ongoing, the KSP could properly deny access to records under authority of KRS 17.150(2) and KRS 61.878(1)(h). Accordingly, we find that the KSP's initial and continued denial of these records under the cited statutes is proper and not a violation of the Open Records Act.
With respect to the request for records relating to DNA sample information concerning Ms. Harding's client, the KSP denied this request under authority of KRS 17.175(4), which states that records produced pertaining to DNA samples shall only be used for law enforcement purposes. In its response submitted to this office, KSP cited 03-ORD-126 in support of its position. In that decision we held that the KSP properly denied DNA profile information being sought by an attorney for a convicted offender under authority of KRS 17.175(4). Accordingly, we find 03-ORD-168 controlling and adopt and incorporate herein by reference our reasoning set forth in that decision and apply it to the instant appeal. We conclude that the KSP's denial of this request did not violate the Open Records Act.
Next, we address Ms. Harding's argument that denial of the requested records violated certain of her client's constitutional rights under both the United States and Kentucky Constitution, including his right to effective assistance of counsel and due process of law. We cannot address, in the context of an open records appeal, a complaint that one's due process rights have been violated. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 03-ORD-029. Our review is confined to the issue of whether the KSP violated the Open Records Act in its handling of Ms. Harding's request, which, as noted above, we concluded it did not.
Finally, Ms. Harding indicates that the requested records are needed for use in her client's trial. In that regard, this office has held that the Open Records Act was not intended to be used as a substitute for discovery procedures. 93-ORD-37. "Requests under the Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, at p. 3. It is therefore not the Attorney General's duty to determine whether records would be discoverable in a civil or criminal action. We are limited in our review to deciding whether the KSP properly denied Ms. Harding's open records request. It is the opinion of this Office that the agency's actions were entirely consistent with the Open Records Act.
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.
Roberta M. HardingWilburt Ham Professor of LawUniversity of KentuckyCollege of Law209 Law BuildingLexington, KY 40506-0048
Rick StiltnerOfficial Custodian of RecordsCommissioner's OfficeKentucky State Police919 Versailles RoadFrankfort, KY 40601
Sgt. L. Scott MillerCommissioner's OfficeKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -