NOT TO BE PUBLISHED
In re: Barbara Elliott Yeager/Kentucky State Police
This matter comes to the Attorney General as an appeal by Barbara
Elliott Yeager in connection with her attempt to secure copies
of documents from the Kentucky State Police.
In a letter to the Kentucky State Police, a copy of which has
not been furnished to this office, Ms. Yeager requested a copy
of the investigation case file concerning Pearly Sue Mills Gambrel
who has been charged with murder and arson in connection with
a 1986 incident.
Diane H. Smith, Official Records Custodian, Kentucky State Police,
replied to Ms. Yeager in a letter dated March 10, 1997, and advised
her that the arson/homicide investigation in question is still
considered active by the State Police. Ms. Smith cited KRS 61.878(1)(l)
and KRS 17.150(2) in support of the public agency's refusal to
make the requested documents available for inspection and copying.
In her letter of appeal, received by the Attorney General on
July 17, 1997, Ms. Yeager said in part that she realized the records
in question are part of an open case and exempt from public inspection.
However, Ms. Gambrel has been indicted on charges of murder and
arson and Ms. Yeager states that, "If Ms. Gambrel is innocent,
then she deserves all due process available to her."
Ms. Smith responded to the letter of appeal in a letter dated
July 22, 1997, and advised that as of that date the case "remains
active." A telephone call received from Ms. Smith on August
5, 1997, reiterated that the case is still considered by the State
Police to be open and active.
KRS 61.878(1)(l) states that among the records which are excluded
from public inspection are, "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 in part 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. See 96-ORD-25, copy enclosed, at page two.
In addition, KRS 61.878(1)(h) authorizes a law enforcement agency
to withhold from public inspection its investigative files while
the case in question is pending. See 96-ORD-22, copy enclosed,
at pages 2-3.
It is, therefore, the decision of the Attorney General that the
denial by the Kentucky State Police of the request to inspect
the records in question is consistent with and supported by the
provisions of the Open Records Act inasmuch as the investigation
has not been concluded. KRS 61.878(1)(l), KRS 17.150(2), and
KRS 61.878(1)(h). Once the prosecution is completed or a decision
to take no legal action has been made, the investigative report
will be subject to public inspection unless excluded under another
statutorily recognized exception. See 96-ORD-76, copy enclosed.
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 he should
not be named as a party in that action or in any subsequent proceeding.
ALBERT B. CHANDLER III
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been distributed to:
Barbara Elliott Yeager
224 Knox Street
P.O. Box 601
Barbourville KY 40906
Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort KY 40601