February 16, 1995

In Re: Matthew Reiss/Kentucky State Police


This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Matthew Reiss's open records request to inspect documents relating to the Kentucky State Police's Internal Affairs investigation regarding the actions of the Kentucky State Police and the Kentucky State Police Special Response Team of the August 8, 1993 incident in Rockcastle County, Kentucky, involving the death of Gary Shepherd.

By letters of August 24, 1994, and September 8, 1994, Ms. Diane H. Smith, Official Custodian of Records, denied Mr. Reiss's request. Ms. Smith advised there was no Internal Affairs investigation of this matter. Relying on KRS 61.878(1)(l) and KRS 17.150(2), she informed Mr. Reiss that the State Police's investigation of the incident, case number 11-93-1643, was still considered active and, because it was an ongoing investigation, it was exempt under the Kentucky Open Records Law and not subject to release.

In addition to requesting documents relating to the investigation of the August 8, 1993, incident, Mr. Reiss asked questions and requested documents and lists of items relating to the Kentucky Governor's Marijuana Eradication Task/Strike Force; requested the State Police to identify the training regimen for Special Response Team members (SRT) by listing all mandatory courses/special training and the number of hours per given course; documents describing the proper uniform for SRT members denoting the markings visible upon the person of a uniformed SRT officer; materials regarding officers' orders, guidebook, or rules of engagement, that denote appropriate actions in a standoff, hostage case, or eradication effort; any material of State Police or SRT members discussing the WACO (presumably this is a reference to Waco, Texas) situation during the three months prior to the Shepherd case; provide the job description and list of responsibilities and prerogatives of Kentucky State Police Commissioner, Secretary of the Governor's Justice Cabinet, SRT Commander William Lewis and his predecessor as SRT Commander; provide orders delineating coordination between the Strike Force, the Marijuana Operations Division, and SRT; provide a list of officers; and civilians with concurrent Strike Force, Marijuana Operations Program and SRT responsibilities; and any materials listing training exercises or educational programs, or discussions in which SRT, Strike Force, Guard, State Police or law enforcement officers and civilians have undertaken in combination of any two of the above for the past 18 months.

In response to Mr. Reiss's request for these documents, Ms. Smith further advised:

In your request you also ask questions which would require the creation of lists and documents which, to my knowledge, do not exist. We cannot produce documents which do not exist and the Kentucky Attorney General has opined that we are not required to create lists to satisfy open records requests.

It is the decision of this office that the Kentucky State Police properly denied Mr. Reiss's request to inspect documents relating to the State Police's ongoing investigation of the August 8, 1993, incident in Rockcastle County, Kentucky.

KRS 61.878(1)(l) provides in pertinent part:

The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction . . .

(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

KRS 17.150(2) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute has been made.

This office has stated in previous opinions that a Kentucky State Police case file is not open for inspection while the investigation is ongoing. 93-ORD-98, OAG 91-8, and OAG 90-143 (copies enclosed).

Accordingly, the State Police are not required to disclose investigative case file #11-93-1643.

In addition, the State Police properly denied Mr. Reiss's request for information which would require the creation of lists and documents which do not exist.

This office has consistently recognized that a request for information, as opposed to a request for specific documents need not be honored. 93-ORD-7 (copy enclosed). Moreover, under the Open Records Act, a person does not have a right to require a list to be made from public records if the list does not already exist. 94-ORD-138 (copy enclosed).

It is further the decision of this office that the State Police should make available for Mr. Reiss those documents which are in existence and not related to the investigation or otherwise exempt from disclosure. Mr. Reiss's open records request is voluminous in that it contains 44 some odd requests for information. They are, for the most part, overly broad insofar as they request information on a subject but are not specific enough as to particular documents. This office has opined in previous opinions that if a person cannot describe the records he seeks to inspect with specificity there is no requirement that the public agency conduct a search for such materials or that copies be delivered to him. See OAG 92-16, OAG 89-8, OAG 84-342, and OAG 76-375, copies enclosed.

Because of the broad and ambiguous nature of many of Mr. Reiss's requests, he may want to resubmit his request and identify the specific documents he seeks to inspect so that the agency may respond with precision.

To the extent records are available which Mr. Reiss has specifically identified, such as job descriptions, SRT member uniform requirements, portions of training programs, policy manuals, and publications or reports of the Governor's Marijuana Eradication Task/Strike Force, they should be made available for inspection.

Mr. Reiss and the Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.







Distributed to:

Ms. Diane H. Smith

Official Custodian of the Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Mr. Matthew Reiss

2323 Times Square Station

New York, NY 10108