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 Oldham County Police Department violated the Kentucky Open Records Act in denying the request of Lt. W.B. Way for copies of "Any and all correspondence of any type of investigation involving Officer Larry B. Simpson of the Oldham County Police Department between the dates of January 1, 2004 through December 31, 2005." 1 Citing KRS 61.878(1)(h) and KRS 17.150(2)(a) and (d), among other provisions, Chief Deputy Sheriff Ronald W. Jones, OCSO, denied Lt. Way's request 2 because the "case, although inactive, remains open and no determination has been made as required by KRS 17.150(2) as of this time." By undated letter received in this office on April 3, 2006, Lt. Way initiated this appeal from the denial of his request, attaching a "No True Bill" returned by the Trimble County Grand Jury on November 3, 2005, based upon the findings of "the Kentucky State Police and the Kentucky Bureau of Investigation," in support of his position.
Upon receiving notification of Lt. Way's appeal from this office, Chief Deputy Jones supplemented his response on behalf of the OCSO, advising this office that "presentation of the KSP case to the Oldham County Grand Jury has absolutely no correlation to any open case that this department has on file." To his knowledge, the KBI "did not present their case to the grand jury but only testified before the grand jury regarding the KSP case." As further noted by the OCSO, Lt. Way affirms this position by characterizing the KSP investigation as "an independent investigation." According to Chief Deputy Jones, this statement is correct; the OCSO investigation is independent as well and "is not yet ready for grand jury presentation. " Until such time as the case is ready for presentation or a determination not to prosecute has been made, "premature disclosure of the contents of the file would have a detrimental effect on the investigation" of the OCSO case. More specifically, non-disclosure of the information sought "is necessary in order to protect sources of information and techniques of investigation." After summarizing the events which precipitated this appeal, Chief Deputy Jones reiterates that "[a]bsolutely no relationship exists between the KSP investigation and the sheriff's office investigation." In conclusion, Chief Deputy Jones clarifies again that "no determination has been made as required by KRS 61.878(1)(h) and 17.150(2)(d) as of this time."
In our view, 04-OR-041 and 05-ORD-193, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. Because the records at issue are records of a law enforcement agency compiled in the process of detecting and investigating a statutory violation, the disclosure of which would harm the OCSO by revealing the identity of informants not otherwise known and/or premature release of information to be used in a prospective law enforcement action, the OCSO properly relied upon KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), in denying Lt. Way's request. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as recognized in the cited decisions, this office has consistently held that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed." OAG 90-143, p. 3; 04-ORD-114. Upon completion of the investigation or a determination not to prosecute, any investigative records which are responsive to Lt. Way's request will be subject to inspection unless specifically excluded from application of the Open Records Act by another statutory exception.
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 not be named as a party in that action or in any subsequent proceeding.
Lieutenant W.B. WayOldham County Police Department1855 North Highway 393LaGrange, KY 40031
Chief Deputy Ronald W. JonesOldham County Sheriff's OfficeFiscal Court Building100 West Jefferson StreetLaGrange, KY 40031
John R. FendleyOldham County Attorney Fiscal Court Building100 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 Because Open Records Appeal, Log Number 200600213, a subsequent appeal filed by Lt. Way against the OCSO, is identical to this appeal, the two have been consolidated for purposes of review.
2 On March 23, 2006, Lt. Way submitted a separate but related request for "Any and all records involving case number 004-SCU-027 on or about June 1, 2005," and a specified CD (illegible title) created "on or about December 16, 2004."