Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police did not violate KRS 61.870 to 61.884 in denying Kenny Goben's December 4, 2012, request for "all drug chemistry notes that pertain to . . . Lab No. 09-J-06177" on the basis of KRS 61.878(1)(h) and KRS 17.150(2)(d). Contrary to Mr. Goben's assertion, these records will be utilized in a prospective law enforcement action and fall squarely within the parameters of the referenced exceptions. Our conclusion finds support in
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992),
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), and 10-ORD-212. A copy of 10-ORD-212 is attached hereto and incorporated by reference. See also, 03-ORD-123 (enclosed).
In its December 13, 2012, denial, KSP explained to Mr. Goben that the requested drug chemistry notes "pertain to an ongoing criminal prosecution in the Jefferson Circuit Court, cases 10-CR-0177 and 0178, . . . investigated by the Louisville Metro Police Department." On appeal, Mr. Goben disputed KSP's position arguing that KRS 61.878(1)(h) and KRS 17.150(2)(d) are inapplicable to the requested records "because there is no ongoing investigation and any and all investigation issues were completed nearly three years ago when the grand jury issued its indictment no. 10-CR-0178." In response to a series of questions propounded by this office under authority of KRS 61.880(2)(c), KSP confirmed that prosecution is pending in the referenced criminal action and that "premature disclosure of the records . . . would harm the agency by compromising the integrity of the materials and documents . . . [and] jeopardize the successful prosecution of the case."
As noted, resolution of the issue presented in this appeal is governed by 10-ORD-212. That open records decision synthesizes some thirty-five years of the Open Records Law as it relates to ongoing criminal investigation and prosecution, recognizing that records generated in these processes can be withheld from public inspection "so long as the possibility of judicial proceedings in the case remain a significant prospect." Skaggs at 39. The opinions analyzed in 10-ORD-212, Skaggs and Bowling , reflect the courts' confidence in "the judicial rules of practice and procedure that apply to [criminal] case[s] . . . [and] require the Commonwealth to make discovery of all information to which the defendant is legitimately entitled during the prosecution of the action." Id. Mr. Goben proceeds, not under the judicial rules of practice and procedure that apply to criminal cases, but under the Open Records Act where he stands in the same shoes as any other records applicant.
Criminal prosecution is pending in the Jefferson Circuit Court in case number 10-CR-0178. The records to which Mr. Goben requests access were generated in the course of the investigation that will culminate in that prosecution. The protections afforded by KRS 17.150(2)(d) and KRS 61.878(1)(h) extend beyond the investigation of a case through the prosecution of that case and do not end "so long as the possibility of further judicial proceedings in the case remain a significant prospect." Skaggs at 391. Further judicial proceedings in 10-CR-0178 are not a possibility but a certainty . Where, as here, the law enforcement agency to which an open records request is submitted articulates the nature of the harm that would result from premature disclosure of records compiled in the process of detection or investigation, neither Mr. Goben nor any other open records requester is entitled to these records under KRS 61.870 to 61.884 until the possibility of further judicial proceedings no longer exists. KSP therefore did not violate the Open Records Act in denying Mr. Goben's open records request.
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:
Kenny GobenEmily M. PerkinsHeather Wagers