September 15, 1993
IN RE: Curt Davis/Louisville Police Department
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Louisville Police Department's denial of Mr. Curt Davis's June 7, 1993, request for copies of "passengers' statements," "photographs taken at the scene," and "any other information" relating to an accident which took place on May 1, 1993, near the junction of I-264 and the Preston Street exit. Mr. Davis is an attorney representing the estate of Jason Paul Davis, who was fatally injured in that accident.
On behalf of the Louisville Police Department, Mr. Paul V. Guagliardo, Assistant Director of Law for the City of Louisville, denied Mr. Davis's request. Relying on KRS 61.878(1)(g), he advised Mr. Davis that "for the time being the . . . records [he] seeks are exempt from disclosure while the investigation is pending."
The issue presented in this appeal is whether the Louisville Police Department violated the Open Records Act in denying Mr. Davis's request. For the reason set forth below, we conclude that the Louisville Police Department properly denied that portion of Mr. Davis's request pertaining to its investigation files. The Louisville Police Department properly released the accident report relating to this incident.
This Office has previously stated that 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. We see no reason to depart from that view today. It is therefore our opinion that Mr. Davis's request was properly denied.
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 en-
forcement 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 police 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 adjudi-
cation 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 reveal a confi-
dential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-124; KRS 17.150(2).
Because we believe that the cited exemption permits the City Police to withhold their investigative files until the prosecution of this case is concluded or a decision not to prosecute is made, we affirm Mr. Guagliardo's denial of Mr. Davis's request.
Mr. Davis was, however, provided with a copy of the accident report prepared by the City Police. This Office has consistently recognized that police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential, but are instead open records. OAG 80-210; OAG 89-76; OAG 90-112. Such reports are not properly treated as a part of the investigative file and are not exempt under any other provision of the Open Records Act. Accordingly, a copy of the report was properly made available to the requester.
We conclude that Mr. Guagliardo's denial of the request to inspect the records in question was proper inasmuch as the investigation of the accident is not complete, and a determination has not yet been made as to whether legal action will be initiated. Once the investigation has been completed and the prosecution concluded, or a decision not to prosecute has been made, the records will be subject to inspection unless exempt under another recognized exception. A copy of the accident report was, however, properly made available for Mr. Davis's inspection.
Mr. Davis may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Paul V. Guagliardo
Assistant Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, KY 40202-2771
Douglas Hamilton, Chief of Police
Louisville Police Department
633 W. Jefferson Street
Louisville, KY 40202
Attorney at Law
5600 South Highway 27
Somerset, KY 42501