NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

93-ORD-98

 

August 19, 1993

 

 

 

 

 

 

 

IN RE: Jon A. Lafferty/Kentucky State Police

 

 

OPEN RECORDS DECISION

 

 

This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Jon A. Lafferty's July 8, 1993, request for a copy of the "complete accident report and investigation" into a fatal automobile accident which occurred on March 31, 1993, in Rockcastle County. Mr. Lafferty is an attorney representing Rene Bader-Each, who sustained severe injuries in that accident.

 

Ms. Diane H. Smith, Official Custodian of Records for the State Police, denied Mr. Lafferty's request in a letter dated July 20, 1993. She advised him:

 

All photos and reports of this accident are a part of the death investigation and cannot be released at this time. I am unable to advise when this case will be closed.

 

Ms. Smith did not, however, cite a specific exception to the Open Records Law authorizing nondisclosure, or briefly explain how the exception applies to the records withheld.

 

The issue presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying Mr. Lafferty's request. For the reason set forth below, we conclude that although its response was technically deficient, the State Police properly denied that portion of Mr. Lafferty's request pertaining to its investigation files. The State Police must, however, release the accident report relating to this incident.

 

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

 

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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the with-

holding of the record and a brief explana-

tion of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

 

Ms. Smith's response to Mr. Lafferty's request was technically deficient in several respects. It does not appear to have been issued within three business days of receipt. Some thirteen days elapsed between the date of the request, and the date Ms. Smith issued her response. Allowing for delays in the mail, the response was nevertheless untimely. Moreover, Ms. Smith failed to cite the specific exception authorizing nondisclosure and provide an explanation of how the exception applies to the records withheld. We urge the State Police to review the cited provision to insure that future responses conform to the Open Records Law.

 

Turning to the substantive issue raised in this appeal, and having considered the relevant exemptions to the Open Records Law, we conclude that Ms. Smith properly denied Mr. Lafferty's request for the State Police investigative file. This Office has previously stated that investigative files in the possession of a law enforcement agency are not open to inspection while the case is active. OAG 87-15; OAG 88-27; OAG 90-64; OAG 91-8; OAG 91-214, OAG 92-46. We see no reason to depart from that view today. It is therefore our opinion that Mr. Lafferty's request was properly denied.

 

KRS 61.878(1)(g) exempts 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 in-

formants 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 en-

forcement action is completed or a decision is made to take no action.

 

This exception is clearly intended to authorize nondisclosure of records generated by the police in pursuing uncharged crimes. Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993).

 

At page 2 of OAG 83-366, this Office observed:

 

[Active files] . . . are . . . not open to public inspection until prospective law enforcement action or administrative adjudi-

cation is complete or a decision is made to take no action. KRS 61.878(1)[(g)] provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which reveal a confi-

dential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-124; KRS 17.150(2).

 

Because we believe that the cited exemption permits the State Police to withhold their investigative files until the prosecution of this case is concluded or a decision not to

prosecute is made, we affirm Ms. Smith's denial of Mr. Lafferty's request.

 

Mr. Lafferty must, however, be provided with a copy of the accident report prepared by the State Police. This Office has consistently recognized that police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential, but are instead open records. OAG 80-210; OAG 89-76; OAG 90-112. Such reports are not properly treated as a part of the investigative file and are not exempt under any other provision of the Open Records Act. Accordingly, a copy of the report should be made available to the requester. The State Police may exercise their discretion in redacting any exempt information which appears on the report pursuant to KRS 61.878(4).

 

We conclude that Ms. Smith's denial of the request to inspect the records in question was proper inasmuch as the investigation of the accident is not complete, and a determi-

nation has not yet been made as to whether legal action will be initiated. Once the investigation has been completed and the prosecution concluded, or a decision not to prosecute has been made, the records will be subject to inspection unless exempt under another recognized exception. A copy of the accident report should, however, be made available for Mr. Lafferty's inspection.

 

Mr. Lafferty and the Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

 

 

jgh/1138

 

 

Distributed to:

 

Ms. Diane H. Smith

Official Custodian of Records

919 Versailles Road

Frankfort, KY 40601

 

Jon A. Lafferty

Williams, Jilek, Lafferty

& Gallagher Co., L.P.A.

500 Toledo Legal Building

416 North Erie Street

Toledo, OH 43624-1696