NOT TO BE PUBLISHED

95-ORD-16

February 17, 1995

In Re: Tim Gillenwater/Kentucky State Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to Tim Gillenwater's January 12, 1995, request for copies of certain records in the custody of the State Police. On January 12, 1995, Mr. Gillenwater requested access to:

Any and all reports and records from any investigative agency concerning the death of Bobby Wayne White.

Mr. Gillenwater is an attorney representing Sherry Graves, the victim's brother, and his request was made under the Kentucky Open Records Act.

On behalf of the Kentucky State Police, Diane Smith, Official Custodian of Records, responded to Mr. Gillenwater's request in a letter dated January 17, 1995. Relying on KRS 61.878 (1)(l) and KRS 17.150 (2), Ms. Smith denied the request, explaining that the requested records are part of an open case, and therefore exempt. On February 1, 1995, Ms. Smith confirmed that the case remains open. She stated that the case is pending before the grand jury.

In his letter of appeal, Mr. Gillenwater asks that we review the State Police's denial of his request to determine if their actions were consistent with the Kentucky Open Records Act. For the reasons set forth below, we conclude that the Kentucky State Police properly denied Mr. Gillenwater's request.

This office has previously stated that case files in the custody of the State Police are not open to inspection while the case is active. OAG 87-15; OAG 88-27; OAG 91-50. We see no reason to depart from that view today. It is therefore our opinion that the denial of Mr. Gillenwater's request was proper.

KRS 61.878(1)(l) authorizes the withholding of, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The Kentucky Revised Statutes provide for nondisclosure of intelligence and investigative reports maintained by criminal justice agencies, prior to the completion of the prosecution or the decision not to prosecute, at KRS 17.150(2).

As indicated, this office has previously stated that State Police investigative files are not open to inspection while the case is pending. OAG 83-366. In that opinion, we advised:

[Active files]. . . are . . . not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(h) 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 confidential informant, information of a personal nature, and information which may indanger [sic] the life of a police officer. OAG 76-124; KRS 17.150(2).

OAG 83-366, at p.2. See also, OAG 85-93; OAG 86-59; OAG 86-81. Upon completion of the prosecution or after a decision not to prosecute is made, the file will be subject to public inspection unless the documents contained in it are exempt under KRS 17.150(2) or another exception to the Open Records Act.

We conclude that Ms. Smith's denial of Mr. Gillenwater's request to inspect the disputed records was consistent with the Open Records Act inasmuch as the decision to proceed with prosecution has not been made. Once the prosecution is concluded or a decision not to prosecute is made, the investigative file will be subject to inspection unless exempt under another recognized exception.

Mr. Gillenwater may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

ABM/tmg/140

Distributed to:

Ms. Diane H. Smith

Official Custodian of the Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Hon. Tim Gillenwater

Gillenwater and Hampton Law Firm

103 East Main Street

Glasgow, KY 42141-2835