January 23, 1997

In re: Charles Clark, Sr./Kentucky State Police

Open Records Decision

This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of the open records request of Mr. Charles Clark, Sr. to inspect a copy of Kentucky State Police case 13-96-500 concerning a shooting that occurred on March 2, 1996 and the death of his son Charles Clark, Jr.

By letter dated November 26, 1996, Ms. Diane H. Smith, Official Custodian of Records, Kentucky State Police, denied Mr. Clark's request, stating that the case was 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. Clark states that he needs both the information and evidence at once so it can be examined before the statute of limitations has passed.

After receipt of the letter of appeal and as authorized by KRS 61.880(2), this office, by letter dated December 26, 1996, received a response from Ms. Smith in which she indicated Mr. Clark had requested this information on at least two other occasions and had been denied. She states that the requested case was still open and ongoing and thus 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 consistently recognized that a Kentucky State Police case file is not open for inspection while the investigation remains open and ongoing. 96-ORD-76; 95-ORD-85.

Accordingly, it is the decision of this office that Ms. Smith properly denied Mr. Clark'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 KRS61.880(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:

Charles Clark, Sr.

General Delivery

Mayking KY 41837

Diane H. Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort KY 40601