Request By:
Antonio Johnson, # 112241
Eastern Kentucky Correction Complex
200 Road to Justice
West Liberty, KY 41472Richard Boling
Commonwealth's Attorney
511 South Main Street, Second Floor
Courthouse Annex
Hopkinsville, KY 42240
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 although his response was procedurally deficient, the Christian County Commonwealth's Attorney properly denied Antonio Johnson's July 16, 2004, request for "[a]ll reports from the arson investigations including reports from Kentucky State Police crime lab on my arson investigation, lab reports, . . . the county grand jury transcript, and any other document sign [sic] to prove the Commonwealth has evidence to prove arson and capital murder." On July 28, 2004, Christian County Commonwealth's Attorney Richard Boling denied Mr. Johnson's request, explaining that his "records are not public records and, therefore, are not covered by your request." Records and information compiled and maintained by Commonwealth's Attorneys pertaining to criminal investigation or criminal litigation are permanently excluded from the application of the Open Records Act by operation of KRS 61.878(1)(h). However, it was incumbent on Mr. Boling to cite this exception to the Act in denying Mr. Johnson's request. Because he failed to do so, Mr. Boling's response was procedurally deficient. KRS 61.880(1).
Nevertheless, the Commonwealth's Attorney's denial of Mr. Johnson's request was substantively correct. We find that 98-ORD-197 is dispositive of this issue. A copy of 98-ORD-197 is attached hereto and incorporated by reference. With the exception of the procedural violation noted above, we find no error in the Commonwealth's Attorney's denial of that 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.