January 23, 1995

In re: Lexington Herald-Leader Company/ Lexington-Fayette Urban County Government


On behalf of his clients, the Lexington Herald-Leader Company and staff reporter Eric Gregory, Mr. James L. Thomerson challenges the Lexington-Fayette Urban County Government's denial of Mr. Gregory's August 30, 1994, request to inspect:

All documents, reports, memos, notes, personal notes, photographs, videotapes and other investigative materials regarding the May 1994 deaths of Brandon Michael Stone Odom and Jacob D. Chappell.

On August 31, 1994, Ms. Theresa L. Holmes, Corporate Counsel for the Urban County Government, responded to Mr. Gregory's request. Relying on KRS 61.878(1)(l), Ms. Holmes advised:

These records are not subject to inspection pursuant to KRS 61.878(1)(l) which exempts from the Open Records Act records "the disclosure of which is prohibited . . . by enactment of the General Assembly." Because both Brandon Odom and Jacob Chappell were under 18 years of age on their deaths, KRS 610.320(3) prohibits the release of "all law enforcement records" relating to them.

The Lexington-Fayette Urban County Government thus denied Mr. Gregory's request.

In his letter of appeal, Mr. Thomerson explains that Brandon Odom and Jacob Chappell were 16-year-old sophomores at Tates Creek High School whose bodies were discovered in Belleau Wood Park on May 17, 1994. The coroner subsequently concluded that both deaths were suicides resulting from gunshot wounds to the head. Mr. Thomerson argues that the protection afforded to juvenile law enforcement records by operation of KRS 610.320(3) expires at the juvenile's death. In support of this position, he cites F.T.P. v. Courier-Journal, Ky., 774 S.W.2d 444 (1984), wherein the Kentucky Supreme Court observed:

The purpose of the shroud of secrecy and confidentiality mandated by the [Juvenile Code] is to protect the juvenile. Clearly this purpose was uppermost in the minds of the General Assembly. It was intended that trials of juveniles not be publicized in the news media, as such publicity would possibly deprive the juvenile of a fair trial and, more particularly, would likely diminish his or her prospect for rehabilitation.

Id. at 446. Since "[t]here is no concern over the minor being stigmatized or his rehabilitation being impaired when the police record involves the suicide of a minor," Mr. Thomerson argues that the confidentiality provision contained in KRS 610.320 should no longer be observed.

Ms. Holmes argues that the statute does not "put any time limit on the confidential nature of the records." Nor, she observes, can the Attorney General add such a limitation to the statute. Citing Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1961), Ms. Holmes notes that the Kentucky Supreme Court has clearly established that:

[W]here a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision.

Id. at 251. Neither the Urban County Government nor the Attorney General can "change the plain meaning of the statute." Moreover, Ms. Holmes observes, since this investigation has been designated inactive, rather than closed, KRS 17.150 bars release of the requested records.

We are asked to determine if the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(l) in denying Mr. Gregory's request. For the reasons set forth below, we conclude that the Urban County Government properly denied the request.

KRS 61.878(1)(l) exempts from the mandatory disclosure provisions of the Open Records Law "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 610.320(3) to exclude "[a]ll law enforcement records regarding children who have not reached their eighteenth birthday . . . ." Resolution of this appeal turns on the proper construction of this confidentiality provision.

There is little to guide us in construing this provision. Although in F.T.P. v. Courier-Journal, supra, the Supreme Court analyzed various provisions of the juvenile code, concluding that these statutes were, in general, intended to protect the juvenile and enhance his or her prospect for rehabilitation, the court did not specifically analyze KRS 610.320(3). Nor did the court indicate what effect, if any, a juvenile's death would have on the application of these provisions. This office has examined the provision on only one occasion. In 93-ORD-42, we held that the Kentucky State Police improperly relied on KRS 610.320(3) in denying a request for records relating to an adult accused of unlawful transaction with a minor, noting that the statute was aimed at protecting juveniles, and not adults who are prosecuted for crimes involving juveniles. We were not asked whether the statute's protection expired with the death of a juvenile.

The protection provided by KRS 610.320(3) is not expressly, or by implication, limited to living juveniles. Had the General Assembly intended this provision to be so restricted, it could have written a limitation into the law. In the absence of any such language limiting its application, we are wary of "supply[ing] an omitted provision." Hatchett, supra, at 251. Simply stated, although the Open Records Act may exhibit a bias in favor of disclosure, the Unified Juvenile Code does not, and it is this law which we are ultimately asked

to construe. We therefore conclude that the Urban County Government properly denied Mr. Gregory's request on the basis of KRS 610.320(3), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).

In OAG 85-140, this office addressed a similar question. There, we upheld the University of Kentucky's denial of a request for a deceased student's academic records on the basis of KRS 61.878(1)(i) and (j), now codified as KRS 61.878(1)(k) [1] and (l), and 20 USCA §1232g(b)(1) [2] and KRS 164.283(2). [3] At page 3 and 4 of that opinion, we observed:

While this Office has stated in OAG 82-590, and other opinions, that the right of privacy is a personal one ending with the death of the person involved, those opinions are not inconsistent or in conflict with the University's denial of the request to inspect public records in this situation. Those privacy opinions did not involve specific federal and state statutory provisions dealing with the confidentiality of particular types of records. The exemptions to public inspection in this situation are based upon federal and state enactments dealing with education records rather than the general privacy exemption of the state's Open Record Law.

The federal and state statutes involved here relative to school records do not exclude from their coverage situations where the student may have died. The federal statute refers to educational records while the state statute refers to all student academic records. We cannot read into those statutes exemptions or exceptions which do not exist.

We believe that the logic of this opinion can be extended to the present appeal. KRS 610.320(3) does not exclude from its coverage situations where the juvenile has died. As we stated in OAG 85-140, we cannot read into the statute an exception which does not exist.

The Lexington Herald-Leader Company 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:

Hon. Theresa L. Holmes

Corporate Counsel

Lexington-Fayette Urban County Government

200 East Main Street

Lexington, KY 40507

Hon. James L. Thomerson

Stoll, Keenon & Park

201 East Main Street

Suite 1000

Lexington, KY 40507-1380

Mr. Eric Gregory

Staff Writer

Lexington Herald-Leader

100 Midland Avenue

Lexington, KY 40507

Ms. Mitzi Baker

203 Kenoak Drive

Louisville, KY 40214


[1]KRS 61.878(1)(k) excludes from inspection, "All public records or information the disclosure of which is prohibited by federal law or regulation[.]"

[2]20 USCA §1232g(b)(1) is contained in the Family Educational Rights and Privacy Act and restricts release of educational records to educational agencies or institutions receiving federal funds.

[3]KRS 164.283(2) places restrictions on the release of student academic records by publicly supported institutions of higher education.