NOT TO BE PUBLISHED
January 23, 1996
In re: Edward L. Lasley/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to Edward Lasley's November 21, 1995, request for copies of certain records in the custody of the State Police. On November 21, 1995, Mr. Lasley requested access to:
The investigation file relating to the fatal automobile accident of Amanda Randall, including witness interviews, measurements taken at the scene, any estimates of speed or cause of the accident, any photographs taken at the scene, or anything in the files relating to the accident.
Mr. Lasley is an attorney in the law firm representing Regina Still, the victim's mother, and his request was made under the Open Records Act.
On behalf of the Kentucky State Police, Diane Smith, Official Custodian of Records, responded to Mr. Lasley's request in a letter dated December 13, 1995. Relying on KRS 61.878(1)(l) and KRS 17.150(2), Ms. Smith denied the request, explaining that the records he seeks are part of an open case, and therefore exempt. On January 9, 1996 , Ms. Smith confirmed that the case remains open.
In his letter of appeal, Mr. Lasley asks that we review the State Police's denial of his request to determine if their actions were consistent with the Kentucky Open Records Act. For the reasons set forth below, we conclude that the Kentucky State Police's response, although procedurally deficient, was substantively correct.
We begin by noting that the State Police's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) 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 agency action.
The State Police's response to Mr. Lasley's November 21 request was issued on December 13, approximately thirteen (13) days after the statutory deadline. We urge the State Police to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that the Kentucky State Police properly denied Mr. Lasley's request. This office has previously stated that investigative reports in the custody of the State Police are not open to inspection while the case is active. OAG 87-15; OAG 88-27; OAG 91-50. We see no reason to depart from this view today. It is therefore our opinion that the denial of Mr. Lasley's request was proper.
KRS 61.878(1)(l) authorizes the withholding of [p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. The Kentucky Revised Statutes provide for nondisclosure of intelligence and investigative reports maintained by criminal justice agencies, prior to the completion of the prosecution or the decision not to prosecute, at KRS 17.150(2).
Although the State Police did not invoke KRS 61.878(1)(h), we have also recognized that their investigative files are not open to inspection while the case is pending. See, e.g., OAG 83-366. In that opinion, we advised:
[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 documents which reveal the identity of a confidential informant, information of a personal nature, and information which may endanger the life or physical safety of a police officer. OAG 76-124; KRS 17.150(2).
OAG 83-366, at p. 2. See also, OAG 85-93; OAG 86-59; OAG 86-81. Upon completion of the prosecution, or after a decision not to prosecute is made, the report will be subject to public inspection unless the documents contained in it are exempt under KRS 17.150(2) or another exception to the Open Records Act.
We conclude that Ms. Smith's denial of Mr. Lasley's request to inspect the disputed records was consistent with the Open Records Act inasmuch as the State Police investigation has not been concluded. Once the prosecution is completed or a determination not to prosecute is made, the investigative report will be subject to inspection unless exempt under another recognized exception.
Mr. Lasley may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court but shall not be named as a party in that action or in any subsequent proceedings.
A.B. CHANDLER III
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Diane Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Edward L. Lasley
Conliffe, Sandmann & Sullivan
621 West Main Street
Louisville, Kentucky 40202