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 Terrance E. Miles for "all documentation" relating to his case, including "the dates all the evidence was submitted, the results of all [s]erological, DNA and trace analysis performed on all evidence and the date the testing was completed." By letter dated June 27, 2007, Mr. Miles initiated this appeal, noting that he received a response from the KSP on June 19, 2007, which complied with provisions of the Open Records Act; however, Mr. Miles had "not received any further response" nor was Mr. Miles "aware of the status" of his request. Upon receiving notification of Mr. Miles' appeal from this office, Roger G. Wright, Office of Legal Services, responded on behalf of the KSP, denying access on the bases of KRS 61.878(1)(h) and KRS 17.150(2).
Although Mary Ann Scott, Official Custodian of Records, had initially advised Mr. Miles that a final response would be issued by June 21, 2007, "another letter was not mailed" due to "an oversight," as explained by Ms. Scott in a letter directed to Mr. Miles on July 2, 2007 (a copy of which the KSP ultimately forwarded to this office). As of that date, copies of the records had "been requested" and her office was "diligently working in good faith to comply" with his request. Insofar as the KSP indicated to Mr. Miles that records would be released to him, "to the extent required by the provisions of the Open Records Act, upon receipt" of same, without specifying the statutory exception or briefly explaining how it applies, the KSP violated the mandatory terms of KRS 61.880(1) ; however, the KSP further advised that any nonexempt records should be mailed to him by Friday, July 13, 2007, in compliance with KRS 61.872(5).
On appeal, Mr. Wright advises that according to Kentucky Supreme Court docket information, a copy of which is attached to his response, the subject criminal action "is pending appeal at the present time." As "there appears to be no dispute that further proceedings are likely in regard to the requested records," Mr. Wright correctly argues that Mr. Miles' request "was properly denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2)." 1 In our view, 04-ORD-234 and 04-ORD-114 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
By invoking KRS 61.878(1)(h), and establishing that Mr. Miles' conviction is not final due to a pending appeal, the KSP satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c). 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)), 2 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). In short, Mr. Miles cannot access the records under the Open Records Act "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs, supra at 391; accord, 05-ORD-246 and 07-ORD-034.
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.
Terrance E. Miles, # 151766Northpoint Training Center, Dorm 3P.O. Box 479Burgin, KY 40310
Mary Ann ScottOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger G. WrightOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 While the KSP not only can but ultimately does invoke these bases for denying access, the KSP did not do so initially although the status of the case presumably could have been verified without reviewing the records in dispute as required to determine whether any of the other statutory exceptions applied.
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2 In Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 339 (2005), the Supreme Court reaffirmed Skaggs, supra, in holding the "principles apply equally to all records in the litigation files of the Commonwealth's Attorney, regardless of origin."
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