Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying Michael D. Linde's undated request for "videotapes of the seven Kentucky State Police cruisers involved in a police chase on I-71 and I-75 out of Post 6 [that occurred on January 24, 2004 that] . . . are evidence [in] case no. 04-CR-00010." In his request, Mr. Linde explained that those records "are required for appeal purposes," twice referencing his intent to initiate an appeal in his request letter. For the reasons that follow, and upon the authorities cited, we affirm KSP's denial of Mr. Linde's request.
Although neither Mr. Linde nor KSP furnished this office with a copy of KSP's response to Mr. Linde's request, 1 by letter dated November 14, 2005, Sergeant L. Scott Miller advised this office that on October 5, 2005, KSP denied that request "on the basis that the underlying criminal investigations were still open." Upon receipt of this office's notification of appeal, KSP inquired into the status of the cases and "determined that . . . [the] 2 cases related to this matter are actually in a closed status." Noting that Mr. Linde has clearly expressed an "intent to file a criminal appeal," Sergeant Miller supplemented KSP's denial by invoking KRS 189A.100, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 3 He explained that "one of the charges leveled against Linde as a result of the pursuit was for a violation of KRS 189A.010," and that the videotape relating to that charge "is exempt from disclosure pursuant to KRS 189A.100." 4 We affirm KSP's denial of Mr. Linde's request on both of these bases. 5
It is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 61.878(1)(h). 6 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, the Attorney General 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. These principles were reaffirmed in June of this year in the case of
Bowling v. Lexington-Fayette Urban County Government, Ky., S.W.3d (2005), holding that the trial court properly quashed subpoenas for records in the custody of the Commonwealth's Attorney and Attorney General because the records were protected from disclosure by KRS 61.878(1)(h).
By his own admission, Mr. Linde intends to initiate, if he has not already initiated, an appeal of his criminal conviction. The potential harm to KSP in disclosure of these records is thus predicated upon the agency's reluctance to release evidence that may be pertinent to further court proceedings. This brings the disputed records squarely within the parameters of KRS 61.878(1)(h). Accord, 99-ORD-93; 03-ORD-123; 04-ORD-129; 04-ORD-234; 05-ORD-211. The requested records 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 equally persuasive KSP's argument that the disputed records qualify for exclusion under KRS 189A.100(2). That statute provides:
(2) Law enforcement agencies may record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
(Emphasis added.) Chapter 189A of the Kentucky Revised Statutes deals with the criminal offense of driving under the influence. KRS 189A.100(2) authorizes law enforcement agencies to record field sobriety tests administered at the scene of an arrest, the police station, the jail, or other suitable facilities "for violation of KRS 189A.010," prohibiting driving while under the influence. If certain conditions are met, the prosecution or defense may introduce the videotape at trial. Thus, the videotape can only be used for official purposes and by the prosecutor and defense attorney "in preparation for a trial" of a person charged with DUI. It must otherwise be treated as a confidential record, the unauthorized release of which is punishable as official misconduct in the first degree. KRS 189A.100(2)(g). Accord, 93-ORD-133. These records, once available to Mr. Linde and his attorney in preparation for trial, are now excluded from inspection by operation of KRS 189A.100(2)(e)3. We find no error in KSP's denial of Mr. Linde's request on this basis.
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.
Michael D. Linde, # 126587 D-1Blackburn Correctional Complex3111 Spurr RoadLexington, KY 40511
Sgt. L. Scott MillerKentucky State PoliceCommissioner's Office919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 Our presumption was that Mr. Linde's appeal was premised, in part, on KSP's failure to respond. We appear to have been in error in this regard.
2 Felony criminal charges were filed against Mr. Linde in both Boone and Gallatin Circuit Courts following a vehicle pursuit that occurred in more than one KSP Post district, specifically Posts 5 and 6. Both posts conducted an investigation into this matter.
3 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.
4 In the same letter, Sergeant Miller advised that KSP would immediately release records containing damage estimates arising from the vehicle pursuit to Mr. Linde, thereby resolving any access issues.
5 Although we have not reviewed KSP's written response denying inspection, we note certain deficiencies in its supplemental response, to wit, the failure to identify the open records exceptions authorizing nondisclosure of the disputed records. We encourage KSP to review KRS 61.880(1) to ensure that future responses strictly conform to the requirements of the Open Records Act.
6 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.