Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of Michael Buchanan for copies of all records in the possession of the KSP relating to Case Number 16-03-0876 on the basis of KRS 61.878(1)(h) since the investigation "remains open due to pending litigation." Upon receiving notification of Mr. Buchanan's appeal from this office, Roger Wright, KSP Office of Legal Services, supplemented the response of the KSP. According to Mr. Wright, the KSP "is justified under KRS 17.150(2), and KRS 61.878(1)(h) in maintaining the requested investigation in an open status" since Mr. Buchanan "acknowledges his criminal appeals process is not final."
In our view, 04-ORD-234 and 04-ORD-114, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. By invoking KRS 61.878(1)(h), and expressly indicating that any responsive records relate to an "open" investigation, the KSP satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c). 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. See 99-ORD-93. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open," as evidenced by prior decisions of this office dating back to 1976 (affirmed by the Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992)), 1 the Attorney General has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed." 04-ORD-114, pp. 9-10 (citations omitted).
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 Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 339 (2005), the Supreme Court reaffirmed Skaggs, supra, in holding the "principles apply equally to all records in the litigation files of the Commonwealth's Attorney, regardless of origin."