May 4, 1995

In re: Robert L. Polk/Fulton County Sheriff's Department


This appeal originated in the submission of a request for public records by Mr. Robert L. Polk, an inmate in the Western Kentucky Correctional Complex, to the Fulton County Sheriff's Department. On February 17, 1995, Mr. Polk requested copies of:

Warrants, statements of evidence and copys of [sic] concerning fingerprints, foot prints, blood inspection etc. in each of count (I) (II) and (III)[.]

Mr. Polk received no response to his request. This appeal followed.

On or about April 6, 1995, this office contacted Fulton County Sheriff Robert Hopper to ascertain the status of Mr. Polk's request. Sheriff Hopper acknowledged that his office had not yet responded to Mr. Polk's request, and agreed to take immediate action. On April 11, Sheriff Hopper advised Mr. Polk:

We are unable to determine if this request is in regard to the 2 pending criminal actions in Fulton Circuit Court or to numerous prior convictions, one of which was in about 1994. The two pending cases are exempt from open records act, KRS 61.870 - 61.884 by virtue of KRS 61.878(f) [sic] and cannot be released. As to the 1994 and all prior convictions, we have no documents in our office. The Fulton Circuit Court &/or the prosecutor in those cases may have information. The 1994 case involved the theft of a Frito Lay truck.

Although Mr. Polk indicated in his letter of appeal to this office that the records he wished to inspect related to Indictment No. 93-CR-032(3), Sheriff Hopper did not have this information at the time of the request.

We are asked to determine if the Fulton County Sheriff's Department violated the Open Records Act in responding to Mr. Polk's request. For the reasons set forth below, we conclude that although its response was procedurally deficient, the Department substantially complied with the Act.

KRS 61.880(1) establishes 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.

The Fulton County Sheriff's Department's response to Mr. Polk's request was deficient to the extent that it was not issued within three business days of receipt. Some thirty-seven business days elapsed between the date of the request and the date of the response. We urge the Sheriff's Department to review the cited provision to insure that future responses conform to the Act.

Turning to the substantive issues in this appeal, we find that the Sheriff's Department properly responded to Mr. Polk's request. Mr. Polk requested various records relating to an unidentified criminal indictment. He has apparently been, and is currently, the subject of numerous criminal indictments. Sheriff Hopper thus properly advised him that his office was unable to ascertain the specific records which he wished to inspect.

This office has previously recognized that although the purpose and intent of the Open Records Act is to permit the "free and open examination of public records . . . ," this right of access is not absolute. KRS 61.882(4). As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:

The Open Records Act provides in part in KRS 61.872(1) that all public records, with certain exceptions, shall be open for public inspection. While persons will obviously acquire information from these records, the primary purpose of the Act is making records available for public inspection. The Act does not require a public agency to provide information beyond that which is made available from permitting access to the public documents. Thus, if the agency is to provide access to public documents the person seeking to inspect those documents must identify them with sufficient clarity to enable the public agency to locate and make them available.

If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.

Because Mr. Polk did not identify the public records which he wished to inspect with sufficient specificity, the Sheriff's Department was unable to locate the records and make them available for inspection. He may wish to resubmit his request to the Department, identifying the specific indictment which resulted in the creation of the records he wishes to inspect.

With respect to pending criminal actions against Mr. Polk, we find that although Sheriff Hopper incorrectly cited the relevant exception, he properly relied on KRS 61.878(1)(h), formerly codified as KRS 61.878(1)(f), in denying that portion of Mr. Polk's request relating to ongoing prosecutions. This office has consistently recognized that investigative files of law enforcement agencies may be withheld while a criminal case is pending. 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; however, records or information compiled and maintained by county attorneys or Commonwealth attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]

In construing this exception, the Attorney General has 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)[(h)] 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 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).

See also, OAG 85-93; OAG 86-59; OAG 86-81; OAG 91-91; OAG 92-46. Indeed, such records may be withheld until a criminal conviction is upheld by the last appellate court to which the conviction can be taken. OAG 83-356. Since the possibility exists of a remand for a new trial, the prosecution cannot be said to be complete. Accordingly, we find that this portion of the Sheriff's response was consistent with the Open Records Act.

Finally, we note that Sheriff Hopper properly advised Mr. Polk that his office did not have custody of records relating to prior convictions, including the 1994 conviction, and furnished him with the identities of the likely custodians as required by KRS 61.872(4).

Mr. Polk and the Fulton County Sheriff's Department may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit

court, but shall not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Mr. Robert Hopper

Sheriff, Fulton County

Hickman, KY 42050

Mr. Robert L. Polk #117065

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, KY 42038-5000