NOT TO BE PUBLISHED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

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

# 764

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