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 Wayne Murphy's March 30, 2012, request for a "documented Record/List of all items/evidence submitted," "Documents verifying all test results of items/evidence that were tested," and "All 'Bench Notes' conducted by all persons involved in the DNA testing, Scientific testing, Microscopic analysis of any items" relating to Case No. 040707108. In a timely written response, KSP Official Custodian of Records Shiann N. Sharpe denied Mr. Murphy's request, advising that all of the records being sought "are part of an investigation that is open and pending in Greenup Circuit Court case number 04-CR-00149; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h)." KSP correctly observed that previous denials by the agency were affirmed on these bases in a line of decisions, including 11-ORD-090 and 11-ORD-171 (acknowledging that "premature release of criminal investigation records in a public manner, rather than through appropriate discovery channels, could cause harm to law enforcement by jeopardizing the successful prosecution of the case"). Additionally, KSP noted that both of the latter two items "relate to DNA analysis and therefore are not subject to public disclosure pursuant to KRS 17.175(4)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In accordance with existing legal authority, this office affirms the disposition of Mr. Murphy's request in its entirety.
Upon receiving notification of Mr. Murphy's appeal from this office, KSP Official Custodian of Records Shiann N. Sharpe elaborated upon the agency's position as follows:
. . . Mr. Murphy was convicted of multiple crimes including rape, robbery, and assault. Mr. Murphy's convictions had a direct appeal and the convictions were upheld by the Kentucky Supreme Court. However, upon information and belief, [Mr. Murphy] has an active 11.42 Motion for Post-Conviction Relief pending in the Greenup Circuit Court (a status hearing was held on April 12, 2012, regarding same) and is represented by counsel in that action. Ultimately, the courts could overturn Mr. Murphy's convictions which could result in a second criminal trial. Although the KSP is not the investigating agency it is imperative that [KSP] maintain its records, preserve evidence, and preserve the chain of custody in the event that Mr. Murphy's conviction is overturned and another trial is warranted. The Office of the Attorney General held in 09-ORD-143 that "This office has recognized, on more than one occasion, that where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency." See also 97-ORD-52, OAG 90-116, 94-ORD-56, 02-ORD-146.
["]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). See e.g., OAG 76-424; OAG 82-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69." (Footnote omitted.) 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. For those reasons, investigations are not subject to disclosure while litigation pertaining to the underlying conviction is pending or there is a significant likelihood of further litigation. The Office of the Attorney General (AG) held in OAG 83-356 that "criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." . . . See also Open Records Decisions 04-ORD-234; 05-ORD-246; 05-ORD-251; 06-ORD-203; 07-ORD-095; 07-ORD-247; 09-ORD-133; 11-ORD-141 which all affirm denial of requests to produce records in cases open due to pending appeals or litigation.
Based upon the foregoing, KSP asserted that its denial of Mr. Murphy's request for documents relating to DNA testing "was proper pursuant to KRS 17.150(2) and 61.878(1)(h)." In the alternative, KSR argued that such records are protected under authority of KRS 17.175(4), "which states that records produced from DNA samples shall be used only for law enforcement purposes and shall be exempt from the provisions of KRS Chapter 61 , and KRS 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure. (Emphasis added.) See also 10-ORD-188 and 05-ORD-251." Although KSP is correct with regard to applicability of KRS 17.175(4), as the referenced authorities confirm, its argument regarding KRS 17.150(2) and 61.878(1)(h) is persuasive and consistent with governing precedents; accordingly, further discussion of this alternative basis for denial is unnecessary. See 03-ORD-126, a copy of which is attached hereto and incorporated by reference, for a detailed analysis of KRS 17.175(4). This office finds that 09-ORD-104, recently adopted in 12-ORD-004 and 12-ORD-024, and premised on
Skaggs v. Redford , 844 S.W.389 (Ky. 1992), is otherwise controlling on the facts presented. Here, as in 09-ORD-104, this office concludes 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. 1 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; 12-ORD-024. 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) here; 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. However, as in 12-ORD-004, in so holding this office is also 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, the Attorney General "will continue to abide by our prior decisions as reflected in 09-ORD-104." 12-ORD-004, p. 4; 12-ORD-024.
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:
Wayne Murphy, # 207062Shiann N. SharpeRoger G. Wright
Footnotes
Footnotes
1 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.