NOT TO BE PUBLISHED
96-ORD-119
May 23, 1996
In re: Peg Stephens/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the denial of an open records request submitted by Peg Stephens to the Kentucky State Police. On April 17, 1996, Ms. Stephens, who is employed by Stephens Investigative Services, and is a fire and explosion investigation specialist, requested copies of all photographs, drawings, and lists of evidence compiled by the State Police in their investigation of a fire which occurred at 310 North Main Street, Owenton, Kentucky, on March 5, 1996. Citing KRS 304.20-160(1), Ms. Stephens explained that her company is investigating the fire for State Farm Insurance Company.
On April 17, 1996, Diane H. Smith, official custodian of records for the Kentucky State Police, denied Ms. Stephens's request. Relying on KRS 61.878(1)(l) and KRS 17.150(2), she stated that the requested records “are part of an open case and, therefore, are exempt from inspection.” In her letter of appeal, Ms. Stephens challenges this position, arguing that the Open Records Law does not prohibit insurance companies or their representatives from obtaining documents when the companies and the State Police are investigating the same case.
We are asked to determine if the Kentucky State Police properly relied on KRS 61.878(1)(l) and KRS 17.150(2) in denying Ms. Stephens's request. For the reasons set forth below, we conclude that the State Police relied in good faith on an exception authorizing nondisclosure of investigative reports maintained by criminal justice agencies until prosecution is completed or a determination not to prosecute has been made, but that because the specific requester in this appeal is an authorized person acting on behalf of an insurer, the State Police may have a separate and independent obligation to produce these records pursuant to KRS 304.20-160(4).
KRS 61.878(1)(l) authorizes public agencies to withhold, “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). That statute provides:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.
Thus, the Kentucky State Police are generally authorized to deny access to open case files.
However, as Ms. Stephens correctly notes, KRS 304.20-160 contains a specific directive to “authorized agenc[ies],” including “the commissioner of the department of state police,” KRS 304.20-150(1)(d), to provide information to “insurers,” including “all authorized persons acting on behalf of an insurer,” [1] KRS 304.20-150(4), upon the insurer's request and within thirty days, if the insurer has provided information to the agency pursuant to KRS 304.20-160(1) or (2). Those sections of the statute provide:
(1) Any authorized agency may, in writing, require an insurer at interest to release to the requesting agency any or all relevant information or evidence deemed important to the authorized agency which the insurer may have in its possession, concerning a loss or potential loss due to fire of suspicious or incendiary origin. Relevant information may include, without limitation herein:
(a) Pertinent insurance policy information pertaining to such fire loss and any application for such a policy;
(b) Policy premium payment records;
(c) History of previous claims made by the insured;
(d) Material relating to such loss or potential loss.
(2) (a) When an insurer has reason to believe that a fire loss, or potential fire loss, in which it has an interest may be of other than accidental cause, then, for the purpose of notification and for having such fire loss, or potential fire loss, investigated, the insurer shall, in writing, notify any authorized agency or agencies and provide them with any or all material developed from the insurer's inquiry into the fire loss, or potential fire loss.
(b) When an insurer provides any one of the authorized agencies with notice of a fire loss, or potential fire loss, pursuant to subsection (2)(a) of this section, it shall be sufficient notice for the purpose of KRS 304.20-160 to 304.20-190.
(c) Nothing in subsection (2) of this section shall abrogate or impair the rights or powers created under subsection (1) of this section.
Subsection (4) of KRS 304.20-160 states as follows:
Any insurer providing information to an authorized agency or agencies pursuant to subsection (1) or (2) of this section shall have the right to request information relevant to a claim by an insured, and receive, within a reasonable time not to exceed thirty (30) days, the information requested.
It is clear that the investigation into the fire which occurred on March 5, 1996, at 310 North Main Street, Owenton, Kentucky, is still active, and that the State Police's refusal to allow inspection of investigative records and reports was proper as to the class of open records requesters generally. It appears, however, that the State Police may have an independent statutory obligation to furnish Ms. Stephens with the requested records. Although Ms. Stephens states that her company is investigating the fire on behalf of State Farm, and thus, presumably, falls within the definition of “insurer” contained at KRS 304.20-150(4), it is not clear whether State Farm Insurance Company or Stephens Investigative Services provided information to an authorized agency or agencies, as required by KRS 304.20-150(4). If this prerequisite has been met, the State Police may wish to reevaluate its decision. While it is not bound by the procedural requirements of the Open Records Act relative to release of the requested records, it may be required to produce those records in a reasonable time not to exceed thirty days pursuant to KRS 304.20-160(4). However, the Attorney General is not empowered to enforce this provision in an open records appeal.
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
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
ALB/510
Distributed to:
Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Peg Stephens, CFI
Stephens Investigative Services
7711 Tanners Lane #101
Florence, Kentucky 41042
[1] 1As used in KRS 304.20-160 to KRS 304.20-150, “insurer” is defined as it is defined in KRS 304.1-040 as “every person engaged as principal and as indemnitor, surety, or contractor in the business of entering into contracts of insurance.”