September 7, 1993
IN RE: David C. L. Bauer/City of Edmonton
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Edmonton's denial of Robyn L. Minor's August 13, 1993, request for a copy of a special audit that apparently indicated that $4,000 in City funds were missing. Ms. Minor is a regional reporter with the Bowling Green Daily News, and her request was made under the Kentucky Open Records Act.
On behalf of the City of Edmonton, City Attorney Jim C. Coleman denied Ms. Minor's request in a letter dated August 13, 1993. Relying on KRS 61.878(1)(f), which was recodified in July, 1992, and is hereinafter referred to as KRS 61.878(1)(g), and OAG 76-633, Mr. Coleman explained:
The matters contained in the Special Report are currently under investigation by KSP Det. Timothy Sullivan of the Columbia (KY) State Police Post. It is the City's position that release of the requested information, at this time, may impede effective investigation and law enforcement in relation to this matter.
Mr. Coleman further indicated that the document would be released "[a]t the time when release . . . no longer causes this threat to exist . . . ."
In a conversation with Det. Sullivan on August 30, 1993, we were advised that the "special audit" which is the subject of this appeal is, in fact, a report in narrative form
containing specific information such as names, amounts, dates, and times. Release of the report at this time would, in his view, impede the collection of evidence and encourage the concealment of relevant facts, arising from the "premature release of information to be used in a prospective law enforcement action."
The question presented in this appeal is whether the City of Edmonton violated the Open Records Act by denying Ms. Minor access to the special audit. For the reasons set forth below, we conclude that the City properly denied Ms. Minor's request.
KRS 61.878(1)(g) exempts from the mandatory disclosure provisions of the Open Records Act:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
This Office has consistently recognized that records compiled by a law enforcement agency are not open to inspection while the case is pending. OAG 76-124; OAG 83-366; OAG 85-93; OAG 86-59; OAG 86-81; OAG 91-50. At page 2 of OAG 83-366, we advised:
[Active files] . . . are . . . not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)[g] provides that records exempted under this section are open after the decision to act or not to act is made. However, even after
the case files are closed, certain documents may still be withheld from public inspection. These include information which reveals a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. (Citations omitted.)
Upon completion of the prosecution or after a decision not to prosecute is made, the special audit will be subject to public inspection unless the documents contained in it are exempt under another exception to the Open Records Act.
It should be noted that although Ms. Minors' request was directed to the City of Edmonton, and the investigation is being conducted by the State Police, we believe the cited opinions are controlling. This Office has also recognized that documents are exempt from inspection pursuant to KRS 61.878(1)(g) even though the agency in possession of the document is not the agency involved in a prospective law enforcement action or administrative adjudication. OAG 83-39; OAG 85-118; OAG 90-97. We therefore conclude that the City properly denied Ms. Minors' request.
Mr. Bauer may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Jim C. Coleman
City of Edmonton
P. O. Box 374
Edmonton, KY 42129
Mr. David C. L. Bauer
P. O. Box 90012
Bowling Green, KY 42102-9012