June 25, 1997

In re: Gary Dillard/Christian County Sheriff

Open Records Decision

This matter comes to the Attorney General on appeal from a denial by the Christian County Sheriff's Department of Mr. Gary L. Dillard's open records request, dated April 24, 1997, to inspect the following:

The material being requested is No: 94-CR-00221 and No: CR-00433. Motion of Discovery, Tapes of the Preliminary Hearing, and the Tapes of the Grand Jury, and any all Photographs of the crime scene entered into evidence by the Commonwealth.

By letter dated May 1, 1997, J. Michael Foster, Esq., Christian County Attorney, responding on behalf of the Sheriff's Department, denied Mr. Dillard's request on the basis that, under authority of KRS 61.878(1)(h), a prosecutor's files are exempt from disclosure even after law enforcement activity is concluded. Mr. Foster also denied access to the records on the basis of Skaggs v. Redford, Ky., 844 S.W. 2d 389(1993).

By letter dated May 16, 1997, Mr. Dillard submitted a second request to the Sheriff's Department, requesting to inspect:

All records from indictment 94-CR-00221 and 94-CR-00433 that is in your file, all statements, Photographs, fingerprints, all uniform Offense Report and Uniform Citation's [sic], all Report of Forenic [sic] Laboratory by the Kentucky State Police, Affidavit for Search Warrant and the Search Warrant, Medical Report, all witness statements.

In his letter of appeal, dated May 27, 1997, Mr. Dillard stated that he received no response to this second request.

The issue presented here is whether the Sheriff's Department violated the Open Records Act in denying Mr. Dillard's request. For the reasons which follow, we conclude that the Department's failure to respond to the second request was inconsistent with the requirements of KRS 61.880(1), and the Department improperly denied access to the requested records by failing to show that the disclosure of the information would harm the agency "by revealing the identity of informants not otherwise known or by the premature release of information to be used in a prospective law enforcement action," as required by KRS 61.878(1)(h).

KRS 61.880(1) states, in part, as follows:

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.

Thus, a public agency is required by law to notify the requesting party in writing within three business days of the receipt of the request to inspect public records of its decision relative to that request.

The Department's failure to respond to Mr. Dillard's second request in writing, even though it may have been the same or similar to his first request, was a procedural violation of the requirements of KRS 61.880(1).

Turning to the substantive issue, KRS 61.878(1)(h) excludes from public inspection:

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.

This office has consistently held KRS 61.878(1)(h) authorizes a law enforcement agency, such as a sheriff's department, to withhold its investigative files until the prosecution of a case is concluded, or a decision not to prosecute is made. 93-ORD-106.

Thus, the Sheriff's Department may withhold various documents until the prosecution of a case is concluded or a decision not to prosecute is made. Once the prosecution is concluded or a decision is made not to prosecute, the sheriff's department would have to make those documents available for inspection unless "exempted by other provisions of KRS 61.870 to 61.884." KRS 61.878(1)(h).

The Department correctly asserts that KRS 61.878(1)(h) authorizes the prosecutorial files of a County Attorney or a Commonwealth's Attorney to remain exempt even after the law enforcement action is concluded. In this regard, this office, in 96-ORD-73, stated:

Thus, the records of the Commonwealth's Attorney pertaining to criminal investigations and criminal litigation never lose their exempt status. No matter what the stage or status of the proceedings, records relative to such activities and endeavors can be withheld from inspection by the Commonwealth's Attorney.

The same would apply to similar records of a County Attorney. However, records of a sheriff's department or a police department would not fall within this class of records which are forever exempt under KRS 61.878(1)(h). In 94-ORD-131, this office stated:

While there is a continuing exception for the records of county attorneys and Commonwealth's attorneys even after the criminal investigation or litigation has been completed, that continuing exception does not apply to records held by the sheriff's department. Skaggs v. Redford, Ky., 844 S.W. 2d 389 (1993), 93-ORD-137 and 93-ORD-106.

This office has consistently maintained this position, relative to sheriff's department files, in open record decisions rendered subsequent to the Skaggs decision and the enactment of the continuing exemption of KRS 61.878(1)(h) relative to the prosecutorial files of the county attorneys and the Commonwealth's attorneys. 93-ORD-106; 93-ORD-137; 94-ORD-131.

Once the prosecution of a case is concluded or a decision has been made not to prosecute, the investigative files of a sheriff's department or a police department are open for inspection, unless otherwise exempt under one of the exceptions to disclosure under the Open Records Act.

In the instant case, the Sheriff's Department cited KRS 61.878(1)(h) as authority for withholding the records. However, to avail itself of this exemption after the prosecution of a case is concluded or a decision has been made not to prosecute, the Department must establish how the disclosure of the records would harm the agency. If a record is withheld from public disclosure because revealing the item would be harmful to law enforcement, the custodian has the burden of showing that the item is being properly withheld for that reason. 94-ORD-133.

The Sheriff's Department apparently construes Skaggs and an advisory issued by this office in 1994 as holding that a law enforcement agency need not make a showing of harm as long as the prisoner is serving his sentence. We do not agree. Neither Skaggs nor the advisory relieves an agency invoking KRS 61.878(1)(h) of its duty to show that it would be harmed by release of the information. No such showing has been made here.

The exception to public inspection, applicable to records of county attorneys and Commonwealth's Attorneys, after criminal investigation or the criminal litigation has been completed, is not applicable to records of the sheriff's department. 94-ORD-131. Since the Sheriff's Department has not met its statutory burden, as required by KRS 61.880(2)(c), relative to establishing that the records requested from its office are exempt under an applicable provision of the Open Records Act, the requested records should be made available for Mr. Dillard's inspection.

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

# 585

Distributed to:

Gary Dillard #119171

Green River Correctional Complex

P.O. Box 9300

Central City KY 42330

Thomas E. Scillian

Christian County Sheriff

501 S. Main Street

Hopkinsville KY 42240

J. Michael Foster

Christian County Attorney

Post Office Box 24

Hopkinsville KY 42241-0024