September 4, 1996

In re: Robert Ellis/Kentucky State Police

Open Records Decision

This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Robert Ellis's open records request for a copy of a videotape, made during a traffic stop involving him, by the State Police.

In his request, Mr. Ellis states in part:

As a result of that traffic stop, the driver, Robert Ellis, was charged with Trafficking in drugs, and later Indicted in connection with these charges. Officer Joe Schenkenfelder stated that the Video Tape would be used as evidence against Robert Ellis, and that the Number which was assigned to this case by Officer Joe Schenkenfelder in reference to this case is: #11-94-1942, the Laurel Circuit Court has assigned their case No. as: 94-CR-154.

Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, denied Mr. Ellis's request, stating:

This is in response to your request for a videotape of a traffic stop made by Trooper Joe Schenkenfelder on August 25, 1994, our case #11-94-1942. Please be advised this case is still considered active by this agency.

The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(l) exempts records made confidential by separate statute. KRS 17.150(2) exempts law enforcement files or cases which have not been closed. The records you seek are part of an open case and, therefore, are exempt from inspection.

In his letter of appeal, Mr. Ellis states that he made further inquiry as to why the case was considered open and active and was informed that the case was pending on appeal in the Kentucky Court of Appeals.

For the reasons which follow, it is the decision of this office that the Kentucky State Police acted consistently with the Open Records Act in denying access to the requested records.

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.

This office has stated in numerous past opinions that a Kentucky State Police case file is not open for inspection while the investigation or prosecution is ongoing. 95-ORD-15, 93-ORD-98, OAG 91-8, and OAG 90-143. Moreover, we have held that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure, as the possibility exists of a remand for a new trial and for this reason the prosecution is not yet completed. 95-ORD-69.

Accordingly, it is the decision of this office that the Kentucky State Police properly denied Mr. Ellis's request for the videotape in its investigative file in this matter on the basis that the prosecution is still open while the criminal case is on appeal. The agency's denial is in accord and consistent with KRS 61.878(1)(l) and KRS 17.150(2).

A party aggrieved by this decision may appeal it 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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Robert Ellis #119533

Otter Creek Correctional Center

P. O. Box 500

Wheelwright KY 41669-0500

Diane H. Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort KY 40601