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 Wayne Eplion for "Any and all documents submitted to the Kentucky State Police Forensics Laboratory requesting examination of evidence" in Commonwealth v. Eplion, "01-CR-00136, Kentucky State Police No. 01-215-03, and associated with Kentucky State Police Report of Forensic Laboratory No. 01-3-01601, specifically any Kentucky State Police form 026 associated therewith" as well as "All documents related to requests for evidence examination submitted by the Kentucky State Police to Orchid Cellmark Nashville (Cellmark Laboratory No. 01-O-08153)" in the referenced criminal action. In a letter dated May 21, 2007, Mary Ann Scott, Official Custodian of Records, advised Mr. Eplion that "KSP was not the investigating agency and, therefore, does not maintain the investigative documents." In addition, Ms. Scott noted that Mr. Eplion was asking for a copy of records "pertaining to a criminal case that still has litigation pending." Citing OAG 83-356 and subsequent decisions of this office, Ms. Scott denied Mr. Eplion's request in accordance with KRS 17.150(2) and KRS 61.878(1)(h). Arguing that Ms. Scott's assertion "that Appellant has a direct appeal pending is fallacious and unsu[b]stantiated" and that "exemption claimed would only be applicable to records actually in the Custodian's possession," Mr. Eplion initiated this appeal by letter dated May 30, 2007.
Upon receiving notification of Mr. Eplion's appeal from this office, Roger G. Wright, Office of Legal Services, responded on behalf of the KSP, noting that Mr. Eplion has requested certain KSP Laboratory Reports which relate to his prosecution and conviction in Boyd Circuit Court in Criminal Action No. 01-CR-00136. As observed by Mr. Wright, the KSP "has confirmed with the Boyd Circuit Court Clerk that Appellant has a pending appeal in the above-referenced criminal action" ; attached to Mr. Wright's response is a copy of records verifying that assertion. Because "there appears to be no dispute that further proceedings are likely in regard to the requested records," Mr. Wright argues that Mr. Eplion's request was properly denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2). Based upon the evidence of record, this office agrees.
In our view, 04-ORD-234 and 05-ORD-246 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. 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)), 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). Of particular significance, 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)." 05-ORD-246, p. 2. In Skaggs, the Court held that records like those requested may be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Id. at 391. Because the record establishes that further judicial proceedings in Mr. Eplion's case are not only possible, but likely, the denial by the KSP of his request is affirmed.
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.
Wayne Eplion, # 161020
Mary Ann ScottOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601