NOT TO BE PUBLISHED
September 19, 1994
IN RE: Richard Nicholas/City of Louisville Police Department
OPEN RECORDS DECISION
Mr. Richard Nicholas challenges the City of Louisville Police Department's failure to respond to his June 2, 1994, request for various records relating to his 1992 arrest for attempted sodomy, including "a Will seized from [his] home" and "a Poor Man's Patent seized from [his] home." As of the date of his appeal, June 27, 1994, Mr. Nicholas had received no response from the Louisville Police Department.
On July 11, 1994, this Office received a letter from Mr. Paul V. Guagliardo, Senior Attorney in the City's Department of Law, in which he explained that Mr. Nicholas's request had been misdirected. He indicated that copies of the requested records would be sent to Mr. Nicholas upon receipt of the copying charge of $17.30, the file consisting of 173 pages. Mr. Guagliardo denied Mr. Nicholas's request for the will and the "Poorman's Patent" seized from his home, characterizing these requests as requests for property which are not cognizable under the Open Records Act.
We are asked to determine if the City of Louisville Police Department violated the Open Records Act in its handling of Mr. Nicholas's request. We conclude that the City's response, although procedurally deficient, did not violate the Act.
The City of Louisville Police Department's response was procedurally deficient to the extent that the Department failed to comply with the three day deadline for agency response to an open records request. This procedural violation
is mitigated by the fact that the request was originally misdirected.
We do not concur with the Department in its view that requests for property seized in the course of a criminal investigation are not cognizable under the Open Records Act when that property consists of records. KRS 61.870(2) defines the term "public record" as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characters, which are prepared, owned, used, in the possession of or retained by a public agency[.]
Although the disputed records were secured by the police in the search of a criminal suspect's residence, they were, at least at one time, "in the possession of or retained by a public agency," and thus technically "public records" within the meaning of KRS 61.870(2). Mr. Nicholas did not, in fact, request property, but copies of records seized by the police and thus "in the possession" of a public agency.
We acknowledge that the General Assembly may not have foreseen the consequences of enacting such an all-inclusive definition. Clearly, the Act was not intended to facilitate access to evidence by criminal defendants, their representatives, or others. As the Kentucky Supreme Court noted in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992):
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory function. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
We fail to see how disclosure of records seized as evidence in a criminal investigation could serve this purpose.
Nevertheless, "the statute exhibits a general bias favoring disclosure." Board of Examiners, supra at 327. Hence, the exceptions which are provided for in the Act "shall be strictly construed," KRS 61.882(4), and all doubts resolved accordingly. Consistent with this "general policy," the definitions found at KRS 61.870, including the definition of "public record," must be broadly construed to permit the widest possible access. By its literal terms, KRS 61.870(2) defines a public record as "all" records which are "in the possession of or retained by a public agency." This all-encompassing definition includes records seized as evidence which are in the possession of the police.
This is not to say that all records seized as evidence, and thus public records within the meaning of KRS 61.870(2), are open records. It is apparent that one or more of the exceptions to the Act may apply to such records, and authorize a police department to withhold them. For example, KRS 61.878(1)(g), now codified as KRS 61.878(1)(h), authorizes the nondisclosure of:
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 intended to allow law enforcement personnel and prosecutorial authorities to seize documentary evidence without having to disclose the documents if disclosure would impede prosecution. Other exceptions to the Open Records Act may apply as well. It is, of course, incumbent on the custodian of records to invoke these exceptions, and explain how they apply to the records withheld. We can envision few, if any, occasions when documentary evidence seized in a criminal investigation would be available for inspection and copying.
While we find little comfort in this thought, we do not believe that it is this Office's duty to deviate from the language of the statute to advance our own views. As we noted in an early opinion:
We interpret the law as it is and not . . . the way we think it should be. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.
OAG 80-54, p. 4.
In the instant appeal the records are no longer available for inspection and copying. According to Mr. Guagliardo, the records, consisting of a will and a deed, have been released to Mr. Nicholas's son, and are therefore no longer in the Department's custody. The Department obviously
cannot furnish access to records which are no longer in its possession, and this portion of Mr. Nicholas's appeal must be treated as moot. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203; 94-ORD-65. In the absence of evidence to the contrary, we must assume the truthfulness of the City's assertion that it no longer has the records in its custody.
Because the Department agreed to release the other documents identified in Mr. Nicholas's request, upon receipt of a ten cents per page reproduction fee, before the Attorney General rendered his decision, the remaining issues raised in this appeal are moot. We therefore decline to address these issues. As we noted in OAG 91-140, p. 4, "[I]f access to the public records for which inspection or copying is sought is initially denied and then subsequently granted, the issue of the propriety of the initial denial becomes moot."
Mr. Nicholas and the City of Louisville Police Department may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Paul V. Guagliardo
City of Louisville
Department of Law
Room 200, City Hall
Louisville, KY 40202-2771
Mr. Richard Nicholas, #113157
Luther Luckett Correctional Complex
P. O. Box 6
LaGrange, KY 40031