Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying James Potter's January 8, 2012, request for a copy of "KSP-153 and KSP-297 and any other documents that would show that policy of OM-B-18(A)(5) and OM-B-3(A) were followed during the search conducted and seizure of property for Case No. 1-08-0613." Citing KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and 61.878(1)(h), as well as prior decisions of this office, including 12-ORD-004 (James Potter/KSP, issued January 5, 2012), KSP denied Mr. Potter's request, advising that all records pertaining to his case "are part of an open investigation" and referenced authorities "affirm that records contained in an open criminal investigation are not subject to disclosure through the provisions of the Open Records Act while the investigation remains open." 1 Asserting that he seeks "only to confirm that officers followed [KSP] mandatory [sic] policy and took photographs of the evidence before it was moved from the house," Mr. Potter initiated this appeal.
Upon receiving notification of Mr. Potter's appeal from this office, KSP reaffirmed its reliance upon KRS 17.150(2) and 61.878(1)(h) "in denying his request for certain specified/categorically described documents related to the KSP (01-08-0613) criminal investigation that led to his felony conviction and current incarceration in Commonwealth v. Potter , McCracken Circuit Court, No. 08-CR-00386." KSP reiterated that Mr. Potter's conviction is not "final." Although the Kentucky Supreme Court affirmed his conviction in part, and reversed in part, by unpublished opinion issued on September 22, 2011 (Case No. 2010-SC-000410-MR), KSP explained, "[u]pon information and belief," Mr. Potter "currently has a pro se Petition for Rehearing dated on or about November 4, 2011, pending before the Kentucky Supreme Court." In addition, KSP has informed the Office of the McCracken County Commonwealth's Attorney of Mr. Potter's request(s), "and said office has informed KSP of its objection to release of investigation records until [Mr. Potter's] criminal proceedings are final."
KSP further noted that Mr. Potter "has requested numerous investigative-file-related materials, to include crime scene photographs [See 12-ORD-004, affirming the denial by KSP of that request on the basis of 09-ORD-140]." Upon information and belief, KSP "is informed that the investigative file does contain crime scene photographs, and chain of custody forms related to the seizure of any crime scene evidence." In closing, KSP maintained that "all contents of the file should be exempted from disclosure under KRS 61.878(1)(h) and 17.150(2) at the present time." Should Mr. Potter need access to his investigative file during the pendency of his appeal or additional circuit court proceedings, KSP advised, "his recourse is not under the Open Records Act, but by court order or motion directed to Office of the Attorney General Criminal Appellate Division or the Office of the McCracken Commonwealth's Attorney, as appropriate." 2
This office finds that 09-ORD-104, adopted in a decision as recently as last month (12-ORD-004), and premised on Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), is controlling on the question presented. Here, as in 09-ORD-104, this office finds that "[b]ecause [the] requested investigative records related to a criminal conviction from which post-conviction relief could still be obtained, under applicable case law the conviction was not final for purposes of the Open Records Act. " 09-ORD-104, p. 1.
In 09-ORD-104, the Attorney General upheld a denial by the Fort Thomas Police Department of a request for investigative records pertaining to a homicide prosecution which resulted in the defendant's conviction. 3 Under the sentencing agreement entered into by the parties, the defendant waived her right to appeal. In rejecting the newspaper appellant's claim that the defendant's waiver of her appeal rights meant there was no significant prospect of further judicial proceedings, the Attorney General reasoned:
The Supreme Court in Skaggs gave no definition of what constitutes a "significant prospect" of further judicial proceedings. Yet the Court did unanimously hold "that the defense of ? prospective habeas corpus proceedings is part of the 'law enforcement action'" and that the "legitimate state interest ? in prosecuting [an offender] is not terminated until his sentence has been carried out." 844 S.W.2d at 390. [Footnote omitted.] Since the convicted offender, and not the law enforcement agency, is in sole control of whether and when any motions for post-conviction relief will be filed, we can see no reasonable place to draw the line of "significant prospect" other than where it was drawn by the Court in Skaggs.
09-ORD-104, p. 5, 6; 12-ORD-004. The Attorney General ultimately concluded that the Department had "sufficiently, if briefly, explained the potential harm that would result from the release of the investigative file." Id. at 6; 12-ORD-004. That harm was postulated on the possibility of remand for a retrial and the harm to the prosecution that could result from disclosure of records not utilized in the original trial of the case.
Because the instant appeal presents no basis for departing from the reasoning contained in 09-ORD-104, a copy of which is attached hereto and incorporated by reference, this office reaches the same result. See also 12-ORD-004 (copy enclosed). As in both of those decisions, evidence has been presented that a motion for post-conviction relief is pending or imminent; accordingly, this office again concludes that KSP properly denied the request for investigative records on the basis of KRS 61.878(1)(h). See also 10-ORD-094. As in 12-ORD-004, however, in so holding this office is compelled to note that in Cincinnati Enquirer v. City of Fort Thomas , S.W.3d, 2011 WL (Ky. App.), the Kentucky Court of Appeals questioned our analysis in reviewing 09-ORD-104 and the circuit court opinion affirming that decision. Specifically, the Court struggled with establishing "guidelines . . . about what constitutes 'harm' or 'premature release' of information," but recognized that "it is the burden of the denying agency to show that an exemption is applicable," ultimately holding that "with regard to the majority of the city's file, the city . . . failed to meet this burden." Id. at 5. A petition for discretionary review was filed in Cincinnati Enquirer v. City of Fort Thomas , above, on November 22, 2011, and the opinion is therefore not final. Until this issue has been conclusively resolved in the courts, this office "will continue to abide by our prior decisions as reflected in 09-ORD-104." 12-ORD-004, p. 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.
Distributed to:
James PotterShiann N. SharpeEmily M. PerkinsRoger G. Wright
Footnotes
Footnotes
1 With regard to Mr. Potter's "request to be told if no photographs or video were taken during the search and seizure, " KSP correctly observed that "the Open Records Act does not statutorily obligate an agency to honor a request for information as opposed to a request for a specifically described public record." Citing OAG 87-84, which KSP noted "states that the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information[,]" KSP properly denied this portion of Mr. Potter's request.
2 In a reply letter dated February 13, 2012, Mr. Potter challenged the agency's reliance upon the cited exceptions, asserting that neither of the forms in dispute is an "intelligence or investigative report," and thus KRS 17.150(2) does not apply. His point is well-taken though not dispositive as governing precedents validate KSP's reliance upon KRS 61.878(1)(h), the application of which Mr. Potter also challenged as KSP acknowledged on appeal that, "due to the fact this file is open and is located at KSP Post 1 (Mayfield) in Western, Kentucky," the Records Custodian had not personally viewed the contents. Accordingly, further discussion of KRS 17.150(2) is unnecessary.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office subsequently obtained a copy of the responsive KSP 153 for in camera review. It suffices to say that a review of said form confirms not only that it was properly withheld on the basis of KRS 61.878(1)(h), as construed in Skaggs and prior decisions, but also that KSP took photographs of the crime scene, a fact which KSP authorized us to relay. KSP also provided us with a blank copy of a KSP 297 form and explained that its content, in relevant part, mirrors that contained in a KSP 41, the chain of custody form for evidence, a hard copy of which is kept in each specific investigative file. Inasmuch as the KSP 297 is only responsive, or exists with information pertaining to Mr. Potter's case, because there is evidence relating to his case, which, as indicated, currently remains open, this form also falls within the parameters of KRS 61.878(1)(h).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 This office noted that before and since Skaggs , above, was issued, the Attorney General "has consistently applied the exemptions contained in KRS 17.150(2) and KRS 61.878(1)(h) [footnote omitted] to situations involving a motion for post-conviction relief." 09-ORD-104, p. 5 (citations omitted). However, this office had not previously been called upon "to address a situation in which there was no indication that such a motion was either pending or imminent. " Id.