Request By:
Mr. Charles R. Geveden
Commonwealth Attorney
P.O. Box 97
Wickliffe, Kentucky 42087
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In the First Judicial Circuit it has been the policy for years for the testimony given by witnesses before a grand jury to be either recorded or taken in shorthand and transcribed pursuant to RCr 5.16. After the commonwealth's attorney has used the transcripts, they are generally placed in the office of the circuit court clerk of the respective counties in the district.
One of the clerks states she has grand jury transcripts dating back to the 1950's, and that they are taking up needed space for civil actions. She has requested you to seek our opinion as to whether she can destroy all transcripts which are more than five years old and which contain no testimony concerning a pending indictment. Your specific question is: May these transcripts be destroyed and, if so, when?
As you mention, RCr 5.16(1) provides that the shorthand notes or the recordings and transcript of the same, if any, shall be delivered to and retained by the attorney for the Commonwealth. Thus the commonwealth's attorney, not the clerk, is the proper custodian of the transcripts, if they are made.
The Court of Appeals has held that this rule, RCr 5.16, does not require that evidence taken before a grand jury be transcribed. The rule has been interpreted to mean that if a transcript is made, it must be given to any person indicted after paying the prescribed fee therefor.
Parker v. Commonwealth, Ky., 461 S.W.2d 86 (1971) 89. See RCr 5.16(2).
Since there is generally no limitation on felony prosecutions, a transcript dealing with a possible felony indictment, as determined by the commonwealth's attorney, would have to be retained indefinitely by the commonwealth's attorney in order to preserve the right of the person indicted to the transcript. RCr 5.16 makes no mention of any destruction of the transcript. See KRS 500.050 as to time limitations in criminal prosecutions. If the commonwealth's attorney determines that the transcript at the most would only warrant an indictment for a misdemeanor, and one year elapses after the offense is committed, justification for destruction of the transcript would exist. See KRS 500.050(2), establishing that the prosecution of an offense other than a felony must be commenced within one year after it is committed. However, the above guidelines would be subject to this: The transcripts should be retained, in the event of indictments, in any event until the persons implicated as offenders in the transcripts have either been acquitted or, if convicted, until final adjudication of the matter.
Although the above conclusions constitute our opinion as to the legal consideration guidelines in the retention and destruction of the transcripts, you should consult Mr. Howard T. Goodpaster, Director and Archivist, Archives and Records Division of Library and Archives, 851 East Main Street, Frankfort, Kentucky, on this matter, since the administrative supervision of various governmental agencies and offices in preservation and disposal of public records is a responsibility of the Department of Library and Archives. See KRS 171.520.