Request By:
Honorable Rosemary F. Center
Wolfe County Attorney
Campton, Kentucky 41301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
You have requested this office to issue an opinion pertaining to the Open Records law. Specifically, you indicate that an election contest suit was filed in Wolfe Circuit Court following the November, 1982 school board election. Simultaneously an FBI investigation was begun with regard to the absentee ballots cast during that election, and the Justice Department subpoenaed the absentee ballots and applications. These have since been released by the Justice Department and returned to the clerk's office. Now the attorneys representing the parties in the election contest suit wish to inspect the absentee ballots and applications as the election contest suit partially relates to these items.
Your specific question is whether the absentee ballots and applications are public records subject to the Open Records law.
KRS 117.085 et seq. promulgates the rules concerning absentee voting. KRS 117.085(3) and 117.087(6) direct the county clerk to retain applications, absentee ballots, detachable flaps and outer envelopes for thirty (30) days. Ballots are then to be burned by the county board of elections. If a contest proceeding is instituted during the thirty (30)-day period, the ballots are not to be burned but instead disposed of as directed by the court in which the proceeding was instituted.
Furthermore, KRS 120.165(3) provides that "all voting machines, ballots, stub books, and other papers concerning which there is any ground for contest" may be removed to the court in which the action is pending. This would in this instance include applications.
Due to the fact that the present election contest suit is pending in Wolfe Circuit Court, the ballots and applications are in the custody of the circuit clerk per KRS 117.085, 117.087, and 120.165(3). They are therefore "public records" in the possession of a "public agency" pursuant to KRS 61.870 and open to public inspection while in the clerk's custody. See OAG 77-727 (copy enclosed).
However, KRS 30A.080(3) specifically restricts the removal of public records from the circuit clerk's office. It provides:
"No clerk shall permit the records or papers of his office to be taken out of his office except in case of invasion or insurrection, or other catastrophe, or pursuant to rule or order of court, and then he shall cause them to be returned as soon as the necessity for removal ceases to exist." (Emphasis added.)
Applications and absentee ballots are therefore public records open to public inspection while in the custody of the clerk. However, removal may only be gained by court order.