Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,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 a post-conviction request for previously undisclosed investigative records. We find that KSP provided the specificity required under KRS 17.150 1 to justify not providing the records.
William Chesher, an inmate at the Kentucky State Reformatory, submitted an Open Records Request, dated September 14, 2016, to the Kentucky State Police for "[c]alls received from William Chesher (502) . . . on or about May 8th thru 15th 2013, call history call log on & off times, routed to officer and officer's notes." On September 22, 2016, Emily Perkins, Official Custodian of Records, Legal Services Branch, KSP, responded 2 to Mr. Chesher's request:
You requested a copy of Kentucky State Police case 15-13-0330 involving yourself pursuant to the provisions of the Kentucky Open Records Act. Due to the seriousness of the crime (Murder) 3 and the significant likelihood of further litigation attacking the underlying conviction, the case remains open to preserve the integrity of the investigation. Accordingly, your request is denied pursuant to KRS 17.150(2)(d) and 61.878(1)(h), which state that records of law enforcement agencies are exempt from disclosure through the provisions of the Open Records Act until such time as prosecution is completed or declined. Premature release of these records in a public forum could result in prejudice to the potential witnesses and has the potential to adversely color witnesses [sic] recollection of the events.
Mr. Chesher instituted this appeal by letter dated October 6, 2016, in which he mentioned that "the requested items concerning the casefile of the Kentucky State Police as well as the other requests were not provided by my trial attorney in my discovery. . ." Ms. Perkins, on behalf of KSP, timely responded to the appeal by letter dated October 24, 2016, in which she explained:
The investigation in question pertains to the murder of Ronnie Hiser in Metcalfe County on May 4, 2013. Due to the serious nature of the crimes, there is a significant likelihood of further litigation attacking the underlying convictions. In fact, Appellant's request indicates that further litigation is forthcoming. The language in KRS 17.150(2)(d) states that records of law enforcement agencies to be used in prospective law enforcement action are exempt from disclosure. In OAG 83-356, it states "criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." Thus, as this conviction has not been upheld by the last appellate court to which the conviction may be taken, the records may be used in future prospective law enforcement action and denial of this request was proper.
In 14-ORD-154, this office was asked to determine whether an agency violated the Open Records Act in denying a request for specified categories of investigative records in the context of a motion to set aside a conviction due to ineffective assistance of counsel. Having quoted the language of KRS 61.878(1)(h), and summarized the analysis found in
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Attorney General observed that KRS 17.150(2)(d) does not require a showing of harm, but KRS 17.150(3) does provide that, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. " 14-ORD-154, p. 3. As in that earlier case, this appeal concerns a post-conviction request for records from the investigative file that were not previously released. KSP's explanation that premature release of the requested records could result in prejudice to the potential witnesses meets the specificity requirement of KRS 17.150(3) by the barest margin. We therefore find that the analysis contained in 14-ORD-154 is controlling on the facts of this appeal, and that KSP did not violate the Open Records Act in withholding the requested investigative records.
Either party may appeal this decision 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 must 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 KRS 17.150 is incorporated by reference into the Open Records Act by operation of KRS 61.878(1)(l).
2 We are unable to determine when KSP actually received the Open Records Request and thus are unable to express an opinion as to whether KSP's response of September 22, 2016, was timely.
3 It should be noted that Mr. Chesher was actually convicted of first-degree manslaughter and tampering with physical evidence, rather than having been convicted of murder as claimed in KSP's response. The Kentucky Court of Appeals affirmed the convictions in Chesher v. Commonwealth, No. 2014-CA-000759-MR, issued March 4, 2016.