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 Ilker Onen's July 27, 2011, request "for copies of all documents concerning the investigation of the October 1983 homicide of Barbara (Powell) Heilman, which occurred in Henry County." Mr. Onen's request continued as follows: "We [ i.e., the Department of Public Advocacy] are requesting information as a result of criminal proceedings in these cases." For the reasons stated below, we find that the KSP did not violate the Act.
By letter dated August 8, 2011, Shiann N. Sharpe, Official Custodian of Records, responded to Mr. Onen's request, invoking KRS 61.878(1)(h) and KRS 17.150(2) (which is incorporated into the Open Records Act by KRS 61.878(1)(l)). She stated that '[t]his information is part of an investigation that is still open" and therefore denied the request under authority of the cited provisions.
In his August 25, 2011, letter of appeal, Mr. Onen states that "[t]he Kentucky State Police indicated in their response that the investigation remains open, yet achieved a conviction with the information presented during trial." He further argues as follows:
I also draw your attention [to] the recent disclosure of files in response to previous Open Records requests in the Steve Nunn and Raymond Jenkins cases. Relying on this statutory provision to not disclose the requested information when the statutory provision has not been relied upon is arbitrary and legally unsound.
Mr. Onen appears to be referring to two highly publicized recent cases in which the Lexington-Fayette Urban County Government voluntarily released police records following criminal convictions instead of choosing to invoke the exceptions to the Open Records Act cited by the KSP.
The KSP responded on September 7, 2011, with a letter from Emily M. Perkins, Paralegal Consultant, Legal Services Branch. Ms. Perkins advises that the investigation in question led to the conviction and death sentence of Parramore Sanborn, who currently has a habeas corpus action pending in the United States Supreme Court. She argues that "the U.S. Supreme Court could overturn Mr. Sanborn's conviction, which could result in a second criminal trial. It is imperative that the Kentucky State Police maintain its case file, preserve evidence, and preserve the chain of custody in the event that Mr. Sanborn's conviction is overturned and another trial is warranted."
In 04-ORD-234, this office addressed the issue of the nondisclosure of investigative records and reports in ongoing criminal cases. At pages 3-4 of that decision, we stated:
KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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). 1 [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) 2 to situations involving a motion for post-conviction relief. See, e.g., 09-ORD-030; 07-ORD-095; 07-ORD-089; OAG 91-91; OAG 91-57.
KRS 61.878(1)(h) contains a requirement that a denial be supported by at least some indication that "disclosure of the information would harm the agency." The KSP has met that requirement by asserting that the investigative records could be needed for a second criminal trial. Furthermore, we find that KRS 17.150(2)(d), as incorporated into the Open Records Act by KRS 61.878(1)(l), applies in this case. That subsection allows records to be withheld if inspection would disclose "[i]nformation to be used in a prospective law enforcement action. " Although Skaggs was decided under KRS 61.878(1)(h), 3 its reasoning applies equally to KRS 17.150(2)(d), which contains the identical key language of "information to be used in a prospective law enforcement action. " Since there is in fact an ongoing law enforcement action in the form of Mr. Sanborn's habeas corpus proceeding, the KSP's disposition of Mr. Onen's request did not violate the Open Records Act. Our rationale for this conclusion is more fully set out in 04-ORD-234, which is attached hereto and adopted as the basis for our decision herein.
Regarding Mr. Onen's additional contention that the KSP acted arbitrarily by withholding records under KRS 61.878(1) after the Lexington-Fayette Urban County Government had chosen to release other investigative records in arguably similar cases, we fail to see how the voluntary actions of one public agency can exercise any legal constraint upon the subsequent choices of other agencies. The KSP was within its rights in invoking the relevant exceptions.
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.
Distributed to:
Mr. Ilker OnenMs. Emily M. PerkinsMs. Shiann N. Sharpe
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.
2 In the earlier decisions cited, the exemption for law-enforcement records was referred to by its former designation of KRS 61.878(1)(f).
3 That subsection was designated then as KRS 61.878(1)(g).