NOT TO BE PUBLISHED
March 8, 1996
In re: Allen G. Breed/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 Mr. Allen G. Breed's open records request for copies of certain records in the custody of the Kentucky State Police. On January 3, 1996, Mr. Breed requested to inspect the following files on former Trooper Mark Lopez:
1. A copy of the administrative charges levied against Mr. Lopez,
who was assigned to the Hazard post.
2. Mr. Lopez's written responses, if any, to the charges.
3. Any affidavits or other materials related to the charges.
4. Any releasable documents concerning the outcome of Mr. Lopez's case, i.e., letters of reprimand or resignation. Also any other reports or documents concerning Mr. Lopez's case.
On January 4, 1996, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, denied Mr. Breed's request, stating:
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. Please be advised that the materials you requested are part of an ongoing investigation which will not be closed or accessible through Open Records until it has been adjudicated.
On January 16, 1996, Mr. Breed requested reconsideration of the denial of his January 3, 1996 open records request. In his letter he states:
I have learned in the interim that Mr. Lopez has resigned from the force. I have consulted with our attorney, and he has advised me that I would certainly be entitled to Mr. Lopez's dates of employment, salaries and any letter of resignation.
Although I understand a criminal case continues in Perry Circuit Court against Mr. Lopez, my attorney is of the opinion that such a probe is parallel to the administrative proceedings. In fact, other reporters have had access in the past to the list of charges filed against Mr. Lopez by the state police.
On January 19, 1996, Ms. Smith reiterated her January 4, 1996 response, advising Mr. Breed that the materials he requested are part of an ongoing investigation which will not be closed or accessible through the Open Records Act until it has been adjudicated and that the records were exempt under KRS 61.878(1)(l) and KRS 17.150(2).
In his letter of appeal to this office, Mr. Breed states:
It has come to my attention that Mr. Lopez has resigned from the force pending removal proceedings by the agency. But my request for any documentation surrounding his departure has been denied on the grounds that Lopez is the subject of an ongoing criminal investigation.
Our attorney, Jon Fleischaker, has told me that these proceedings are mutually exclusive, and that Mr. Lopez's dates of employment, salary records and letter of resignation should be open records. His resignation should make the removal proceeding a closed case.
Subsequent to this office's receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2., the Kentucky State Police provided this office with a written response to the issues raised in the appeal. In that response, Ms. Smith states:
This is in response to the Open Records Appeal filed by Mr. Allen G. Breed concerning my denial of his request for information on former Kentucky State Police Trooper Mark Lopez.
Attached you will find a resignation agreement signed by former Trooper Lopez and former Commissioner Jerry Lovitt along with their respective counsels. My understanding is that this agreement is part of an open Kentucky State Police investigation. We are awaiting adjudication of the criminal charges before Perry Circuit Court, case 94-CR-00012. To date, this case is still pending before the court and the Kentucky State Police case is still considered active.
Pursuant to KRS 17.150(2), Mr, Breed's request for records was denied because this case is still open. To my knowledge, no other requests for this information have been honored.
Under authority of KRS 61.880(2) and 40 KAR 1:030, the undersigned contacted the Kentucky State Police, to obtain additional information and documentation regarding the issues raised in this appeal. The Kentucky State Police stated the criminal case in Perry Circuit Court, case no. 94-CR-00012, involving former Trooper Lopez was still pending and not yet adjudicated. We were advised the Kentucky State Police administrative action, Kentucky State Police Board No. 94-1, involving Trooper Lopez, was closed as a result of his resignation.
We are asked to determine whether the Kentucky State Police's denial of Mr. Breed's request to inspect certain records relating to Trooper Lopez was consistent with the Open Records Act. For the reasons which follow, we conclude that the actions of the Kentucky State Police were consistent in part and inconsistent in part with the Act.
It is the decision of this office that the Kentucky State Police properly denied Mr. Breed's request to inspect documents relating to the criminal charges pending against Trooper Lopez in Perry Circuit Court.
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 consistently held that law enforcement investigative files are not open to inspection while the case is pending. 95-ORD-16; OAG 83-366. Upon completion of the prosecution or after a decision not to prosecute is made, the file 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.
This office has also consistently recognized that records such as salaries and dates of employment are not excluded from public inspection under the Open Records Act. 95-ORD-80; 94-ORD-108; OAG 89-90. These are matters relating to the employment of public employees at public expense and serve the public interest of providing oversight into the operation of government. We are not persuaded that these records can properly be characterized as intelligence and investigative reports within the scope of KRS 17.150. Thus, we conclude that the Kentucky State Police improperly denied access to Mr. Breed's request to inspect Trooper Lopez's dates of employment and salary records.
The Kentucky State Police also withheld the Resignation Agreement between Trooper Lopez and the Kentucky State Police. The Kentucky State Police has advised us that the administrative action is now concluded and the basis for its denial was KRS 17.150(2). The Kentucky State Police has not relied on any other exception to exempt the Resignation Agreement. Therefore, there is now no basis to deny access to the Resignation Agreement and it must be made available by the Kentucky State Police to the requester. We do note, however, the Resignation Agreement contains a provision that the resignation be kept confidential until a final determination of the criminal charges pending against Trooper Lopez in Perry Circuit Court is entered. In 95-ORD-87, this office stated that an agreement to maintain confidentiality of a public record need not be honored if it is inconsistent with the Open Records Act. As noted above, letters of resignation are generally matters of a public nature not excluded from public inspection.
Thus, it is the decision of this office that the Kentucky State Police violated the Open Records Act by improperly withholding the salary records, dates of employment, and Resignation Agreement pertaining to Trooper Lopez. This violation is mitigated by the fact that the Kentucky State Police has indicated that these records would be made available for Mr. Breed's inspection, and agrees that the grounds for the exclusion of the Resignation Agreement no longer exist.
A party aggrieved by this decision may appeal it by initiating action in theappropriate 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
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Allen G. Breed
P. O. Box 131
Pikeville, Kentucky 41501
Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601