24-ORD-088
April 1, 2024
In re: Katherine Liles/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it denied a request for intelligence and
investigative
reports
before
prosecution
has
concluded
or
a
determination declining prosecution has been made.
Open Records Decision
Katherine Liles (“the Appellant”) submitted a request to KSP for the entire
case file associated with a murder that occurred on November 13, 1992. In a timely
response, KSP denied the request under KRS 61.878(1)(h) and KRS 17.150(2) because
the “investigation is still ongoing and contains sensitive information that, if released
to the public, would jeopardize the investigation and hinder the conclusion that has
been sought for decades.” KSP also stated that premature release of the records could
affect witnesses’ recollection of events. This appeal followed.
“Intelligence and investigative reports maintained by criminal justice agencies
are subject to public inspection if prosecution is completed or a determination not to
prosecute has been made.” KRS 17.150(2) (emphasis added). Accordingly, “the
completion of a prosecution or a decision not to prosecute is a condition precedent to
public inspection” of records within the scope of KRS 17.150(2). 20-ORD-090; see also
OAG 90-143 (“investigative files and reports maintained by criminal justice agencies
are not subject to public inspection until after prosecution is completed or the
investigation has been concluded and a determination has been made not to prosecute
the matter”).1
If a law enforcement agency denies access to a record under KRS 17.150(2), it
must “justify the refusal with specificity.” KRS 17.150(3). The agency may satisfy the
1
While the Office recognizes its decades-long interpretation of KRS 17.150(2) has recently been
called into doubt by the Kentucky Court of Appeals, that decision is not yet final and is currently
pending review before the Supreme Court of Kentucky. See Courier-Journal, Inc. v. Shively Police
Dep’t, No. 2021-CA-1120, 2022 WL 16842295 (Ky. App. Nov. 10, 2022), disc. rev. granted, No. 2023-
SC-0033 (Ky. Aug. 16, 2023).requirements of KRS 17.150(3) by giving specific information to explain that
prosecution of the criminal matter has not been completed or declined. See, e.g., 21-
ORD-259; 17-ORD-144; 14-ORD-154. However, the Office has also found that a law
enforcement agency cannot indefinitely rely on KRS 17.150(2) to deny inspection of
cases that have been languishing without any real potential for resolution. In such
cases, a de facto determination not to prosecute, in essence, has been made. See, e.g.,
21-ORD-128 (KSP improperly denied inspection of a 53-year-old cold case).2
Here, KSP denied the Appellant’s request because the investigation was
ongoing, and the prosecution had not been declined. On appeal, KSP provides a
statement from the lead investigator explaining that law enforcement received new
information regarding potential suspects on December 29, 2021. Since then, KSP has
again interviewed the victim’s son and learned more information about potential
witnesses. In June 2022, KSP requested that specific DNA evidence be re-tested by
the KSP crime lab. Further, KSP has recorded phone calls of interviews with various
individuals. KSP states that multiple potential suspects have been identified and it
is still actively attempting to schedule interviews with these individuals. Given that
KSP is actively engaged in forensic analysis of evidence in this case, and that several
potential suspects have been identified but have yet to be interviewed, KSP has
provided enough “specificity” that the investigation is ongoing and a decision whether
to prosecute has not been made. Thus, despite the length of time this case has been
open, KSP has carried its burden that the requested records are exempt under
KRS 17.150(2).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
2
Of course, a long lapse in time does not mean that a future prosecution is legally barred. Indeed,
there is no statute of limitation for prosecuting felonies in Kentucky, and such prosecutions “may be
commenced at any time.” See KRS 500.050(1). Rather, in the context of withholding records under the
Act, a de facto determination not to prosecute only means that the prosecutor has no plans to initiate
prosecution for the foreseeable future.#157
Distributed to:
Katherine Liles
Samantha A. Bevins