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 Kentucky State Police violated the Open Records Act in denying the request of George Mayle for copies of photographs, on the basis of KRS 17.150(2) and KRS 61.878(1)(h), since the case remains open due to pending litigation. Because the requested photographs are part of an ongoing criminal case in which the appellate process is not final, we affirm the KSP's denial of Mr. Mayle's request.
In his letter of appeal, dated September 6, 2006, Mr. Mayle stated that he had submitted an open records request to Jeff Caudill, KSP Post 14, Ashland, Kentucky, on August 17, 2006, and had yet to receive a response to his request, which asked for a copy of:
. . . all photographs taken on December 27th, 2002 "Specifically photographs of Injuries of or during arrest -- including entry into the Carter County Jail."
Upon receiving notification of Mr. Mayle's appeal and a copy of his August 17, 2006, request letter from this office, Emily M. Perkins, Commissioner's Office, KSP, provided this office with a response to the issues raised in the appeal. Ms. Perkins advised that Mr. Mayle was seeking to obtain photographs attached to KSP case #14-02-1302, which remains open due to pending litigation and the KSP denied the request under authority of KRS 17.150(2), and KRS 61.878(1)(h) in order to protect the integrity of KSP's case throughout the appellate process. Addressing Mr. Mayle's contention that KSP had failed to respond to his request, Ms. Perkins explained:
Mr. Mayle apparently addressed his request to Jeff Caudill at Kentucky State Police Post in Ashland, Kentucky. Capt. Caudill is no longer appointed to or assigned for duty at Post 14, and all open records requests should be submitted to the proper authority, the Custodian of Records, at 919 Versailles Road, Frankfort, Kentucky, 40601. Regardless, no other employee at Post 14 or any other branch of the Department of State Police has received this request from Mr. Mayle to date.
In 04-ORD-234, this office addressed the issue of the nondisclosure of investigative records and reports in ongoing criminal cases. In that decision, we stated:
KRS 61.878(1)(l) authorizes public agencies to withhold:
This provision operates in tandem with KRS 17.150(2) to exclude from public inspection "intelligence and investigative reports maintained by criminal justice agencies . . . [until] prosecution is completed or a determination not to prosecute has been made." The term "intelligence and investigative reports" is, in our view, broad enough to extend to audio and video tapes containing interviews with the participants in the criminal act giving rise to the investigation. Based on a line of opinions dating back to 1976, and affirmed by the Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), we conclude that the disputed tapes may properly be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
It is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 17.150(2) as well as KRS 61.878(1)(h). 1 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, we 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.
The KSP states that the photographs Mr. Mayle seeks are attached to KSP case #14-02-1302, which remains open due to pending litigation, in which the appellate process is not final. This brings the case within the scope of KRS 61.878(1)(l) and KRS 17.150(2), as well as KRS 61.878(1)(h) as construed in Skaggs v. Redford, above, and they remain exempt until prosecution is completed. Accord, 04-ORD-129; 04-ORD-234. We therefore affirm the KSP's denial of Mr. Mayle's open records request.
In its response to this office, the KSP states that it never received Mr. Mayle's request. Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Mayle's open records request, thus, we make no finding in this regard. See 03-ORD-061.
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)(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.