Request By:
Hon. David L. Armstrong
Commonwealth's Attorney
30th Judicial District
Jefferson Hall of Justice
Louisville, Kentucky 40202Attn: C. Bruce Traughber
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion as to whether recently enacted KRS 17.142 is applicable to the courts.
This statute relates to the segregation of arrest records of persons against whom charges have been dismissed. The statute states as follows:
(1) Each law enforcement or other public agency in possession of arrest records, fingerprints, photographs, or other data whether in documentary or electronic form shall upon written request of the arrestee as provided herein segregate all records relating to the arrestee in its files in a file separate and apart from those of convicted persons, if the person who is the subject of the records: (a) Is found innocent of the offense for which the records were made; or (b) Has had all charges relating to the offense dismissed; or (c) Has had all charges relating to the offense withdrawn.
(2) A person who has been arrested and then has come within the purview of subsection (1) of this section may apply to the court in which the case was tried, or in which it would have been tried in the event of a dismissal or withdrawal of charges, for segregation of the records in the case. Upon receipt of such application the court shall forthwith issue an order to all law enforcement agencies in possession of such records to segregate the records in accordance with the provisions of this Act.
(3) Each law enforcement agency receiving an order to segregate records shall forthwith: (a) Segregate the records in its possession in a file separate and apart from records of convicted persons; (b) Notify all agencies with which it has shared the records or to which it has provided copies of the records to segregate records; and (c) All records segregated pursuant to this section shall show disposition of the case.
This statute could only be applicable to the courts if they are included by the term "public agncy".
A reading of the first section of the statute appears to indicate that it was not the intent of the legislature to include the courts within the definition of "public agency" as the statute pertains only to "arrest records, fingerprints, photographs, or other data whether in documentary or electronic form". Presumably the legislature would have specifically mentioned court records if it had intended to include them. Similarly, according to the second section of the statute, an order of segregation issued by the court is to be directed only to law enforcement agencies. The order does not encompass the court clerks who maintain the records of the courts.
"Public agency" is not defined in Chapter 17 and has not been defined by the courts in Kentucky. Definitions of "public agency" can be found in Chapter 61 which contains the general provisions as to offices and officers. The definition of "public agency" in KRS 61.805 which relates specifically to the open meetings law does not include the courts. However, the definition of the term in KRS 61.870, which pertains to the open records law, does include courts or judicial agencies.
Portions of the open records law as applied to records of courts or judicial agencies were rejected in Ex Parte Farley, Ky., 570 S.W.2d 617 (1978). There it was stated:
"* * * the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation."
The court in its opinion also noted the inconsistencies in the open records law with KRS 26A.200 which provides that court records are subject to the control of the Supreme Court.
It is our opinion, therefore, in view of the language in the statute and the authorities we have cited, that the record segregation statute does not apply to court records.