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 properly relied upon KRS 61.878(1)(h) and KRS 17.150(2) in denying the request submitted by Don A. Pisacano on behalf of his client, Kentucky Growers Insurance Company, for "all relevant information" obtained by KSP with regard to Case No. 07-06-0073, an arson investigation of property located at 880 Pea Ridge Road, Irvine, Kentucky, and "other relevant information" regarding the owner, Hope Sparks, and/or Larry Riddle. Because the subject investigation(s) is active/pending, KSP did not violate the Open Records Act in denying Mr. Pisacano's request on the cited bases. However, KSP may have a separate and independent statutory obligation to produce the records pursuant to KRS 304.20-160(4); resolution of this issue is beyond the scope of the instant appeal. In accordance with 04-ORD-114 and 96-ORD-119, the denial by KSP is affirmed.
By letter directed to KSP Headquarters on August 4, 2006, Mr. Pisacano advised that he represents Kentucky Growers Insurance Company "in the matter of an insurance claim involving a fire loss" which occurred on January 15, 2006, at the address provided. According to Mr. Pisacano, Kentucky Growers "hired an arson investigator to investigate the loss and learned that the fire was intentionally set in several places in the home"; attached to his request was a copy of "the investigation and forensic analysis report." Pursuant to KRS 304.20-160(4), Mr. Pisacano requested "all relevant information" concerning the specified "fire loss. "
In a letter dated August 18, 2006 (request was received on August 15, 2006), Mary Ann Scott, Official Custodian of Records, notified Mr. Pisacano that KSP had "identified one investigation involving Mr. Riddle as the victim of a Burglary, case number 07-04-1497. Both of these investigations [07-06-0073 and 07-04-1497] are still open." According to Ms. Scott, KRS 304.20-160(4) "only applies to insurance providers and is not applicable to law enforcement agencies. " Accordingly, KSP denied Mr. Pisacano's request "pursuant to KRS 17.150(2) and 61.878(1)(h)." In reply, Mr. Pisacano advised Ms. Scott that she is "mistaken in that the statute I reference (KRS 304.20-160(4)) clearly states that an insurer is entitled to information from any state investigative agency that is relevant to an insurance claim that may involve arson. " As further observed by Mr. Pisacano, this "is not a FOIA request. The information you provide shall remain confidential. You have thirty days to comply with this request, which means you now have until September 4."
On September 1, 2006, Roger G. Wright, Assistant General Counsel, responded on behalf of KSP. Noting that KSP had "been unable to locate any Attorney General decisions or Kentucky appellate decisions which have interpreted or applied" KRS 304.20-160(4), Mr. Wright stated that KSP's position is that "the referenced statutory provision does not negate the ability of [KSP] to withhold copies of pending criminal investigations pursuant to the authority of KRS 61.878(1)(h) and KRS 17.150(2)." That being said, KSP provided Mr. Pisacano with a copy of "14-06-0030, as this investigation is now closed." With respect to the remaining two investigations (14-06-0151 and 07-06-0073), Mr. Wright advised that "both remain pending." Although Mr. Pisacano did not pose any specific questions concerning these cases, Mr. Wright further advised him that "neither of two pending investigations currently list an identified person as an accused or suspect." Although KSP declined to provide copies of reports concerning open investigations, KSP offered to "accommodate, through assigned arson investigators, reasonable requests for information via arranged telephonic conference interviews or personal meetings" if Mr. Pisacano so preferred. Since KSP relied partially upon KRS 61.878 in denying his request, KSP advised Mr. Pisacano of his right to appeal the disposition of this matter pursuant to KRS 61.880.
By letter dated September 11, 2006, Mr. Pisacano initiated this appeal from the denial of his request. Upon receiving notification of Mr. Pisacano's appeal from this office, Mr. Wright supplemented his response on behalf of KSP. As observed by Mr. Wright:
The issue presented under this appeal is whether an Insurance Company which, pursuant to KRS 304.20-160, provides information to [KSP] concerning a suspected arson fire loss involving one [of] its insured, is entitled to obtain copies of pending investigations, in spite of the exemptions for such reports set forth in KRS 61.878(1)(h) and 17.150(2). It is the position of the [KSP] that since the Insurance Code does not explicitly require release of pending investigations, KRS 304.20-160(4) is satisfied by provision of information concerning the status of investigations.
As set forth in the prior correspondence between the parties attached to the appeal, the [KSP] has expressed its willingness to allow Growers Insurance Company to speak directly to the arson investigator (s) assigned to the requested case files to obtain information concerning the status of the investigation. To this end, the undersigned counsel provided counsel for Growers with the contact number for the investigator assigned to one of the requested investigation[s] on September 12, 2006. The [KSP] will continue to cooperate with Growers; however, it requests that the denial of copies of pending investigations be upheld.
Because the instant appeal presents no reason to depart from governing precedent, this office finds that KSP properly relied upon KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 in denying Mr. Pisacano's request.
Among those records excluded from application of the Open Records Act are records of law enforcement agencies "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. " KRS 61.878(1)(h). In denying Mr. Pisacano's request, KSP relies upon this exception and KRS 17.150(2), pursuant to which:
(2) Intelligence 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. However, portions of the records may be withheld from inspection if the inspection would disclose:
(Emphasis added). When viewed in conjunction, the implication of these provisions is that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are open for public inspection. OAG 83-123, p. 2.
As long recognized by the Attorney General, it "is generally within the discretion of the police department to decide when a case is [active], merely inactive, or is finally closed." Id. However, the burden is on the agency to justify the denial with specificity. Id. In our view, 04-ORD-114, a copy of which is attached hereto and incorporated by reference, is controlling as to application of KRS 61.878(1)(h) and KRS 17.150(2), both of which expressly recognize that law enforcement agencies such as KSP may withhold investigative records until prosecution is completed or a decision not to prosecute has been made. See 98-ORD-30; 99-ORD-143. Accordingly, the Attorney General has been reluctant to determine "how long the [agency] could consider a case inactive before finally declaring it closed." 96-ORD-25, p. 2, citing OAG 86-80, p. 4. Given the current status of the investigation(s) at issue, KSP did not violate the Open Records Act in denying access to records concerning same. Once the investigation is completed or a determination not to prosecute has been made, any investigative records concerning the incident in question will be open to public inspection unless specifically excluded from application of the Open Records Act by another statutory exception.
In Mr. Pisacano's view, his client is entitled to receive the otherwise exempt records by virtue of KRS 304.20-160, which contains a specific mandate to "authorized agencies," including the "commissioner of the Department of State Police," KRS 304.20-150(1)(d), to provide information to "Insurer [s]." More specifically, KRS 304.20-160(4), upon which Mr. Pisacano relies exclusively, provides:
Any insurer providing information to an authorized agency or agencies pursuant to subsections (1) or (2) of this section shall have the right to request information relevant to a claim by an insured, and receive, within a reasonable time not to exceed thirty (30) days, the information requested.
According to Mr. Wright, KSP satisfied this provision by providing information concerning the status of such investigations; these conflicting interpretations of KRS 304.20-160(4) cannot be reconciled in the context of an Open Records appeal. To the contrary, the role of the Attorney General in adjudicating disputes relating to records access is narrowly defined by (2)(a).
As evidenced by the record, the investigation into the fire involving Ms. Sparks which occurred on January 15, 2006, at 880 Pea Ridge Road, Irvine, Kentucky, as well as the burglary investigation concerning Mr. Riddle, remains active or pending. That being the case, the refusal of KSP to permit inspection of investigative records was proper as to "the class of open records requesters generally." 96-ORD-119, p. 2. However, KSP may have an independent statutory obligation to furnish Mr. Pisacano with a copy of the records. Although Mr. Pisacano's client, Kentucky Growers, presumably falls within the definition of "insurer" codified at KRS 304.20-150(4), as in 96-ORD-119, the record does not reveal whether the insurer (Kentucky Growers) or the hired investigator provided information to an authorized agency or agencies pursuant to subsection (1) or (2), as required to trigger application of KRS 304.20-160(4). If this prerequisite has been met, KSP may wish to reevaluate its position. "While it is not bound by the procedural requirements of the Open Records Act relative to release of the requested records, it may be required to produce those records in a reasonable time not to exceed thirty days pursuant to KRS 304.20-160(4)." 96-ORD-119, p. 3. However, the Attorney General is not empowered to enforce this provision in an Open Records appeal.
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 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.