April 4, 1996

In re: R. Scott Madden/Kentucky State Police


This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Scott Madden's request to inspect a copy of Kentucky State Police cases 13-96-104 and 13-96-105 concerning an accident that occurred on January 18, 1996, in Leslie County involving Timothy R. Owens and Sheldon Dobson.

By letter dated March 7, 1996, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, denied Mr. Madden's request, stating that these cases were still considered active by the agency. As such, Ms. Smith, relying upon KRS 61.878(1)(l) and KRS 17.150(2), stated the records requested were part of open cases and, therefore, exempt from public inspection.

In his letter of appeal, Mr. Madden states that the accident involved was a fatal automobile accident and the Kentucky State Police's investigative report was needed in relation to a civil suit that would be filed.

Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2), this office received a response from Ms. Smith in which she indicated that the requested cases were still open and ongoing and thus were still exempt from disclosure pursuant to KRS 17.150(2).

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 previously recognized that a Kentucky State Police case file is not open for inspection while the investigation remains open and ongoing. 95-ORD-85.

Accordingly, it is the decision of this office that Ms. Smith properly denied Mr. Madden's request for the Kentucky State Police's investigative report in this matter on the basis that the investigation is still open. The agency's denial is in accord and consistent with KRS 61.878(1)(l) and KRS 17.150(2).

Once the investigation and legal action have been completed or a decision has been made to take no legal action, the records requested will be subject to public inspection unless excluded by another statutory exception to the right of public inspection. OAG 90-143.

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.






Distributed to:

R. Scott Madden

Madden & Roberts

116 Lawyers Street, Ste. 3

Manchester, Kentucky 40962

Ms. Diane H. Smith

Official Custodian of the Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601