By Tom Latek
Kentucky Today
The attorney general’s office has ruled that the Kentucky State Police in Madisonville violated the Open Records Act when it denied a request to inspect records contained in a 53-year-old cold case in western Kentucky.
Ashley Gruner asked KSP to inspect records related to an unsolved homicide case that occurred in western Kentucky approximately 53 years ago. The agency responded and denied the request pursuant to state law, because “this information is part of an investigation that is still open” and “premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events.”
KSP directed the appellant to “contact the Post 2 Records Clerk… to determine if the case has been closed” prior to submitting another request.
A five-page opinion written by Assistant Attorney General Matthew Ray stated that although a law enforcement agency may invoke an exemption in the Open Records Act to deny inspection of intelligence reports related to a case in which prosecution has not concluded, the exemption cannot apply indefinitely.
The purpose of this exemption is to protect the rights of the criminally accused to a fair and impartial trial. But as time progresses, and it becomes apparent that no prosecution will be forthcoming, then a de facto decision not to prosecute has been made. Ray cited a 2019 Court of Appeals case which held that KSP could not rely on the exemption to deny inspection of records relating to an investigation that had been ongoing for 22 years for which there was no evidence that a suspect would be charged in the future.
Ray noted, “Although some of these facts support KSP’s claim that investigation of this case has not concluded, it is undisputed that 53 years have passed since the crime occurred, all witnesses, except one, are deceased, the surviving witness has already been interviewed, and KSP has sought public assistance because it currently is unable to charge anyone. It is unclear from this record whether KSP has identified a suspect, or if any suspect still survives.”
Although Open Records decisions carry the force of law, it also states, “A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court.”
