TO BE PUBLISHED
November 9, 1993
IN RE: Benjamin J. Lookofsky/Kentucky State Police
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Benjamin J. Lookofsky to the Kentucky State Police on September 20, 1993. Mr. Lookofsky is an attorney representing Ms. Vicki Arnett, who was arrested on April 12, 1993, in Graves County, Kentucky, and charged with alcohol intoxication. At the time of her arrest, a videotape was apparently made by the State Police. It is that videotape which is the subject of this appeal.
On October 4, 1993, Ms. Diane H. Smith, Official Custodian of Records for the Kentucky State Police, denied Mr. Lookofsky's request for the videotape. She relied on KRS 189A.100(2) which is incorporated into the Open Records Act by operation of KRS 61.878(1)(k). The provision authorizes a public agency to withhold public records the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. KRS 189A.100(2) pro-
Law enforcement agencies may record on film or videotape or by other visual and audible means field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
(a) The testing is recorded in its entirety (except for blood alcohol analysis testing); and
(b) The entire recording is shown in court unless the defendant waives the showing of any portions not offered by the prosecution; and
(c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it was introduced by the Commonwealth; and
(d) The defendant or his counsel is afforded an opportunity to view the entire recording a reasonable time before the trial in order to prepare an adequate defense; and
(e) Recordings shall be used for official purposes only and shall be shown only in court, to the prosecution and defense in preparation for a trial, or upon the order of a court. Recordings shall otherwise be considered as confidential records; and
(f) After all appeals have been exhausted the recordings shall, upon the order of a district court, be destroyed; and
(g) Public officials or employes utilizing or showing recordings other than as permitted in this chapter or permitting others to do so shall be guilty of official misconduct in the first degree.
Ms. Smith cited subsection (e) of the provision in support of her denial.
In his letter of appeal to this Office, Mr. Lookofsky states that he and Ms. Arnett were not advised of the existence of the videotape until after she had pleaded guilty to the charges against her. He further states that he has been advised that the State Police wish to withhold the tape because it contains footage of Ms. Arnett's companion, who was charged with DUI. It is his belief that the State Police must segre-
gate that portion of the tape which shows his client, and release it to him.
The question presented in this appeal is whether the Kentucky State Police properly relied on KRS 189A.100(2)(e) in denying Mr. Lookofsky's request. For the reasons set forth below, we conclude that his request was properly denied.
Chapter 189A of the Kentucky Revised Statutes deals exclusively with the criminal offense of driving under the influence. KRS 189A.100(2) authorizes law enforcement agencies to record field sobriety tests administered at the scene of an arrest, the police station, the jail, or other suitable facili-
ties "for violation of KRS 189A.010," prohibiting driving while under the influence. If certain conditions are met, the prosecution or defense may introduce the videotape at trial. Thus, the videotape can only be used for official purposes and by the prosecutor and defense attorney "in preparation for a trial" of a person charged with DUI. It must otherwise be treated as a confidential record, the unauthorized release of which is punishable as official misconduct in the first de-
gree. KRS 189A.100(2)(g).
It is our understanding that Mr. Lookofsky's client was not charged with DUI. Rather, it was her companion, who also appears on the videotape, who was so charged. Under the express terms of KRS 189A.100(2)(d) the entire videotape must be made available to Ms. Arnett's companion, or her companion's attorney, a reasonable time before her companion's trial for driving under the influence. Its release is otherwise strictly prohibited. We therefore do not believe that the State Police have the option of segregating that portion of the tape showing Mr. Lookofsky's client at the time of her arrest, and releasing it to him. Ms. Smith's response was entirely consistent with the Open Records Act.
Mr. Lookofsky may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882. Pursuant to KRS 61.880(3), the
Attorney General should be notified of any actions against the Kentucky State Police in circuit court, but he should not be named as a party in that action, or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Hon. Benjamin J. Lookofsky
Attorney At Law
East Side Court Square
P. O. Box 696
Mayfield, KY 42066