Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the denial by the Commonwealth's Attorney for the 6th Judicial District of Ms. Pamela E. Sapp's March 17, 1997 open records request for a copy of a recent letter sent to Jay Wethington, Commonwealth's Attorney, by Lt. David Osborne and the Kentucky State Police in which they refer to Mr. Wethington's request for an investigation of a complaint she made against two individuals to Commissioner Rose.
On April 17, 1997, we sent the Commonwealth's Attorney a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Ms. Sapp's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Wethington provided this office with a response to the issues raised in the appeal. In his response, Mr. Wethington states, in relevant part:
This letter is a response to an open records appeal filed by Pamela E. Sapp and the notice thereof that I received on the 19th of April, 1997. The records Ms. Sapp requests pertain to a criminal investigation and are between this office and the Kentucky State Police. Therein the letters name the individuals accused and discuss specific requests for investigation. The corresponding letter from the Kentucky State Police also concerns the nature of the investigation and, specifically, litigation.
Mr. Wethington cites language from KRS 61.878(1)(h), which states:
However, records or information compiled and maintained by County Attorneys or Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
We are asked to determine if the Commonwealth's Attorney violated the provisions of the Open Records Act in responding to Ms. Sapp's request. For the reasons set forth below, we conclude that Mr. Wethington's denial was proper and consistent with provisions of the Open Records Act.
KRS 61.878(1)(h) permanently excludes from inspection:
[Records] or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation. . . .
Such records, as indicated by Mr. Wethington's response, are "exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." KRS 61.878(1)(h). Thus, any records, including the letter from the Kentucky State Police relative to Ms. Sapp's complaint, in the Commonwealth's Attorney's possession and pertaining to criminal investigations, are forever exempt pursuant to KRS 61.878(1)(h). It is the decision of this office that the Commonwealth's Attorney for the 6th Judicial Circuit properly denied Ms. Sapp's request.
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 should not be named as a party in that action or in any subsequent proceeding.