September 14, 1993






IN RE: James E. Hayden/Graves County Sheriff's Department






This matter comes to the Attorney General on appeal from the actions of the Graves County Sheriff's Department in responding to Mr. James E. Hayden's request to inspect investigative documents relating to a break-in of the grain bin on his property in 1991, and a subsequent assault. Mr. Hayden indicates that he has been unsuccessful in his attempt to gain access to these documents.


On June 21, 1993, we responded to an earlier open records appeal filed by Mr. Hayden. We advised him that Sheriff Bob Morgan had completed the incident report relating to the grain bin break-in, and that it was available for inspection and copying. Mr. Hayden acknowledges that he received a copy of the report. However, he has been unable to obtain any other records relating to this incident, or the subsequent assault.


We are asked to determine if the Graves County Sheriff's Department violated the provisions of the Open Records Act in its handling of Mr. Hayden's requests. For the reasons set forth below, we conclude that the Department's actions violated the Open Records Act only if any enforcement actions involving these incidents had been concluded at the time of Mr. Hayden's request, or a decision had been made to take no action.


This Office has previously recognized that pursuant to KRS 61.878(1)(g), investigative files in the possession of a

law enforcement agency are not open to inspection while the case is active. OAG 87-15; OAG 88-27; OAG 90-64; OAG 91-8; OAG 91-214; OAG 92-46; OAG 93-ORD-98. KRS 61.878(1)(g) exempts from public inspection:


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 exception is clearly intended to authorize nondisclosure of records generated by the sheriff's department in pursuing uncharged crimes. Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993).


At page 2 of OAG 83-366, this Office observed:


[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. OAG 76-124; KRS 17.150(2).


The cited exemption permits the Sheriff's Department to withhold its investigative files until the prosecution of a

case is concluded, or a decision not to prosecute is made. If, at the time of Mr. Hayden's request, the Department's investigation into these two incidents had not been concluded, its refusal to release the requested records did not violate the Open Records Act. If at the time of his request, the investigation had been concluded, and enforcement action taken or a decision to take no action made, the Department violated the law.


If the Hayden case is now closed, Mr. Hayden may resubmit his request to the Graves County Sheriff's Department. The Department is obligated to release any records in its files which are not otherwise excluded by one of the exceptions to the Open Records Act.


We remind Sheriff Morgan that KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.


It is unclear from Mr. Hayden's letter of appeal whether the Department adhered to this statute in denying his request. Sheriff Morgan should, however, review the provision to insure that future responses conform to the Open Records Act.


Mr. Hayden and the Graves County Sheriff's Department may challenge this decision by initiating action in the

appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Sheriff Bob Morgan

Graves County Sheriff's Department


Mayfield, KY 42066


Mr. James E. Hayden

822 West Broadway

Mayfield, KY 42066