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 actions of the Louisville Office of Medical Examiner relative to the request of Terrance Eugene Miles for a copy of the "Autopsy and Toxicology reports of Michael Tinsley, which was performed by your office of 2/27/05," violated the Open Records Act. Having received no reply to his request, Mr. Miles initiated an appeal to this office. For the reasons that follow, we conclude that the Medical Examiner's actions, with the exception of a procedural deficiency, were proper and did not constitute a violation of the Act.
After receipt of notification of the appeal and a copy of Mr. Miles letter of appeal, Elizabeth A. Heilman, Counsel, Office of the Medical Examiner, by letter dated November 8, 2005, provided this office with a response to the issues raised in the appeal. Ms. Heilman stated that upon inquiry, employees of the Louisville Office of Medical Examiner indicated that they had not received a copy of Mr. Miles' request until November 2, 2005. Ms. Heilman's response included a copy of a November 2, 2005 letter from Mandy Combest, Louisville Office of Medical Examiner, to Mr. Miles explaining to him that the delay in responding to his request was due to his request being addressed to incorrect personnel and that the Office of Medical Examiner would contact him in writing after it had been notified of the status of the case from the investigating agency. 1 In her response, Ms. Heilman further advised that Ms. Combest had contacted Detective Ashby of the Shively Police Department and was informed that the request involved the records of a homicide victim in an open murder case in which inmate Miles is the alleged perpetrator. On these facts, Ms. Heilman argued that the requested records are exempt from disclosure under authority of KRS 61.878(1)(h). In addition, citing KRS 61.878(1)(a), she argued that furnishing the documentation contained in its autopsy files should also be exempt when those records contain graphic details of violent crime when relatives of the victim of those crimes would be traumatized by disclosure.
Addressing the procedural issue first, KRS 61.872(5) provides that, if there is to be a delay in producing the requested records which exceeds three business days after receipt of the request, that the agency give the requester a detailed explanation for the cause of further delay and the place, time, and earliest date on which the public record will be available for inspection.
In its response, dated November 2, 2005, the date that the request was received, the agency advised Mr. Miles that the Office of Medical Examiner would contact him in writing after it had been notified of the status of the case from the investigating agency. No precise day and time was given as to when Mr. Miles might expect a decision as to whether he would be provided access to the requested records. This response was technically deficient in that it failed to inform Mr. Miles as to the earliest date the requested records would be available for inspection, as required by KRS 61.872(5). Failure to give a date, even though it may only be an estimate, does not give the requester enough information to determine whether access to the records will be provided within a reasonable period of time.
Turning to the substantive issue in this appeal, we affirm Medical Examiner's denial of Mr. Miles' request for the "Autopsy and Toxicology reports of Michael Tinsley" based on the existence of ongoing criminal prosecution related to this death under authority of KRS 61.878(1)(h). 2 The Attorney General has long recognized that a coroner may withhold an autopsy report on the basis of KRS 61.878(1)(h), while criminal prosecution is contemplated or in progress. OAG 82-458, OAG 83-223; OAG 91-6; 94-ORD-84; 97-ORD-81; 01-ORD-31.
Only after criminal prosecution is concluded must the autopsy report be produced for public inspection, unless exempted from disclosure under an applicable provision of KRS 61.878(1). Accordingly, we conclude that the agency's denial of access to the requested autopsy reports under authority of KRS 61.878(1)(h) was proper and consistent with the Open Records Act and prior decisions of this office. Moreover, KRS 17.150(2), incorporated into the Open Records Law by operation of KRS 61.878(1)(l), 3 has been deemed to authorize nondisclosure of an autopsy report while criminal prosecution is pending. That provision provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." OAG 91-6; 97-ORD-81. Because the foregoing is dispositive of this appeal, we need not address other reasons set out as a basis for denial of inspection of the requested records.
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.
Terrance Eugene Miles, # 151766Northpoint Training CenterDorm 6P.O. Box 479Burgin, KY 40310
Dr. Richard F. GreathouseOffice of the Chief Medical Examiner810 Barret AvenueLouisville, KY 40204
Mandy CombestOffice of the Chief Medical Examiner810 Barret AvenueLouisville, KY 40204
Elizabeth A. Heilman, CounselOffice of the Medical ExaminerJustice and Public Safety Cabinet125 Holmes StreetFrankfort, KY 40601
Kris M. CarltonAssistant County Attorney600 W. JeffersonLouisville, KY 40202
Footnotes
Footnotes
1 Insufficient information is presented in this appeal for this office to resolve the factual issue concerning the time of the actual delivery and receipt of Mr. Miles' open records request, thus, we make no finding in this regard. See 03-ORD-061.
2 KRS 61.878(1)(h) authorizes 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; . . . . 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.
3 KRS 61.878(1)(l) requires 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.