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 James (Chip) Adams II for "[a]ll records showing the Time and Location where the 911 call reporting the abduction of Heather Teague on August 26, 1995 was received." Because the records in question are "part of an open criminal investigation" and premature release of the information contained therein could be detrimental, the 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), in denying Mr. Adams' request. When the subject investigation is completed or a determination is made not to prosecute, any investigative records which are responsive to Mr. Adams' request will be open for inspection unless specifically excluded from application of the Act by another statutory exception. Although this office has consistently recognized that a law enforcement agency has discretion to determine the status of a case, the record in 04-ORD-041 reveals that the incident under investigation occurred in 1995; accordingly, this office reminds the KSP that a public agency cannot indefinitely postpone access to investigative records by labeling the investigation open or active.
Noting that his request dated May 11, 2007, had "not been acknowledged nor denied since being mailed, " Mr. Adams initiated this appeal by letter dated May 24, 2007. Upon receiving notification of Mr. Adams' appeal from this office, Lt. Scott Miller, Commissioner's Office, responded on behalf of the KSP. Regarding the alleged procedural violation, Lt. Miller explains that Mr. Adams directed his request "to Detective Marc Carter of the Kentucky State Police in Henderson, Kentucky. Our response has been delayed due to the request not being sent directly to the Open Records Custodian." 1 That being said, Lt. Miller denies Mr. Adams' request on the bases of KRS 17.150(2) and 61.878(1)(h) because the records implicated are "part of an open criminal investigation. " According to Lt. Miller, "release of this information could be detrimental to a successful resolution of this investigation. At this point no charges have been filed"; consequently, "there is potential for future prosecution. We continue to actively pursue leads in hopes that we can eventually bring closure to this investigation." Based upon the foregoing, Lt. Miller asserts that "preliminary release of material contained" in the records concerning this open investigation "could potential[ly] hamper future efforts."
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. 2 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 KSP by premature release of information to be used in a prospective law enforcement action, the KSP 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 Mr. Adams' 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 Mr. Adams' request will be open for 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.
James (Chip) Adams II
Mary Ann ScottOfficial Custodian of RecordsKentucky State Police9191 Versailles RoadFrankfort, KY 40601
Roger WrightOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601
Lt. Scott MillerCommissioner's OfficeKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 Pursuant to KRS 61.872(2):
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
Because the KSP has acknowledged failing to respond within three business days in writing as mandated by KRS 61.880(1) and Mr. Adams' misdirection of the request is partially responsible for the delay, this office will not belabor the issue. With regard to application of KRS 61.880(1), 05-ORD-110, pp. 2-4, is controlling.
2 At issue in 04-ORD-041 was a request submitted by John Yarbrough on behalf of Sarah Teague, mother of Heather Teague, for "'all recordings, transcripts, and notes from all interviews, call-ins[,] reports, and leads received by Kentucky State Police during the period from August 25, 1995 to September 1, 1995 that led to the suspect Marvin Dill in the abduction of Heather Teague.'" In concluding that the KSP had met its burden of proof, albeit marginally, this office concurred with Mr. Yarbrough "in his view that a public agency cannot indefinitely postpone access to investigative records by labeling an investigation ongoing, as evidenced by OAG 86-80," in which the Attorney General held that the agency had not satisfied its burden of proof in denying access to a file concerning a missing person case that had been classified as "'an open case (active or inactive as opposed to closed) for almost eight years.'" Id., pp. 7- 8. Since over three years have elapsed since 04-ORD-041 was issued, meaning the subject investigation has been ongoing for approximately twelve years now, the question presented is a close one in our view; however, this office is unwilling to substitute its judgment for that of the KSP on this issue since the KSP has established that leads are being pursued.