Request By:
Johnny Penn, # 170727
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Linda Tally Smith
Commonwealth's Attorney
2252 Burlington Pike
P.O. Box 168
Burlington, KY 41005
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Commonwealth's Attorney for the 54th Judicial District erred in failing to respond to Johnny Penn's December 30, 2003 request for a copy of "the audio cassette tape bearing the statements of any witnesses that may have testified before the Grand Jury" in Case Number 03-CR-00231, in a manner consistent with the requirements of KRS 61.880(1). However, we affirm the Commonwealth's Attorney's January 14, 2004 denial of Mr. Penn's request on the basis of KRS 61.878(1)(h). 1 We find that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is controlling. Because the Commonwealth's Attorney is not required by the Open Records Act to disclose grand jury records, we find no error in her ultimate denial of Mr. Penn'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.
Footnotes
Footnotes
1 We note that the Commonwealth's Attorney's belated denial did not "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). Instead, she asserted that her office "is exempt from the Open Records Act [and therefore] unable to provide . . . the requested record." We urge the Commonwealth's Attorney to review KRS 61.880(1) to insure that future responses conform to the requirements of that provision, and remind her that KRS 61.878(1)(h) does not exclude from public inspection all records maintained by her office, but only "records or information compiled and maintained . . . by [her office] pertaining to criminal investigations or criminal litigation [.]"