Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in denying Gary Woolbright's request for "a color copy of all [three] pictures ? of a handgun in Barren Circuit Court, Case No. 01-CR-414, Commonwealth v. Woolbright." Because these investigative records relate to an ongoing collateral attack on a criminal conviction, in which Mr. Woolbright is seeking to obtain post-conviction relief from that underlying conviction, which is therefore not final for purposes of the Act, we affirm the KSP's denial of Mr. Woolbright's request.
By letter dated January 6, 2009, 1 Shiann N. Sharpe, Official Custodian of Records for the KSP, responded to Mr. Woolbright's request, advising him that the records he sought pertained to an investigation that "remains open due to pending litigation," and therefore denied his request under authority of KRS 61.878(1)(h) and KRS 17.150(2).
In his letter of appeal, dated January 13, 2009, Mr. Woolbright stated that his "judgment of conviction was finalized on August 25, 2005, when the Supreme Court [of Kentucky] affirmed the same." The KSP's response, submitted January 23, 2009, by Roger G. Wright, Assistant General Counsel, advised as follows:
The KSP has confirmed with the Barren Circuit Court Clerk that the Appellant has a Motion for Post Conviction Relief pending in the above-referenced criminal action ? and a hearing on the matter is scheduled for March 17, 2009. Accordingly, further proceedings are imminent in regard to the requested records; therefore, Appellant's request was properly denied pursuant to KRS 61.878(1)(h) and KRS 17.150(2).
Mr. Wright attached a printed docket entry showing the scheduled hearing.
On February 5, 2009, this office received further correspondence from Mr. Woolbright, in which he confirmed that he was seeking to use the photographs in a motion for post-conviction relief under RCr 11.42. Mr. Woolbright further stated that the KSP's denial "would thwart the procedural requirement of presenting all my claims on RCr 11.42" and therefore was "an unconstitutional abrogation of my rights in remedy pursuant to RCr 11.42 thus a denial of my Fourteenth Amendment right to due process."
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." ? 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 [records] 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). 2 [Citations to prior opinions omitted.] 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.
Before and since Skaggs, this office has consistently applied the exemptions in KRS 17.150(2) and KRS 61.878(1)(h) 3 to situations involving a motion for post-conviction relief. See, e.g., 07-ORD-095; 07-ORD-089; OAG 91-91; OAG 91-57.
The term "intelligence and investigative reports" in KRS 17.150(2) is, in our view, broad enough to extend to photographs that constitute part of a criminal investigation. Because these investigative records relate to an ongoing collateral attack on a criminal conviction, in which Mr. Woolbright is seeking to obtain post-conviction relief from that conviction, the Commonwealth's interest in prosecution is not terminated and the conviction is not final for purposes of the Open Records Act. 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, supra, and the requested records remain exempt until prosecution is completed. 99-ORD-93; 03-ORD-123; 04-ORD-129. We therefore affirm the KSP's denial of Mr. Woolbright's open records request. 4
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 Although Mr. Woolbright's request form bears the date of December 11, 2008, we are unable to ascertain from the record when it reached the KSP from the Kentucky State Reformatory.
2 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.
3 In the earlier decisions cited, the exemption for law-enforcement records was referred to by its former designation of KRS 61.878(1)(f).
4 With regard to Mr. Woolbright's claim that his due process rights have been violated, we note that issues of due process are beyond the scope of an open records appeal. 08-ORD-142.