Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Charles R. Hickman, Shelby County Attorney, violated the Kentucky Open Records Act in denying the request of Associated Press reporter Joe Biesk for "access to, or copies of" any correspondence "written or electronic" between Mr. Hickman or a representative of his office and an unidentified state legislator from his jurisdiction involving an unidentified individual, "a request for a warrant" or "any other matters" 1 on the basis of KRS 61.878(1)(h). Based on the mandatory language of KRS 61.878(1)(h) as interpreted by both this office and the courts, it is the decision of this office that Mr. Hickman properly relied upon KRS 61.878(1)(h) in denying Mr. Biesk's request.
In a timely response, Mr. Hickman advised Mr. Biesk that his request was denied in accordance with KRS 61.878(1)(h), which, in relevant part, provides:
Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; 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. The exemptions provided by this subsection shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.] (Emphasis added).
Arguing that correspondence of the type in question "should not be shielded from public scrutiny, " Mr. Biesk, initiated this appeal from Mr. Hickman's denial of his request on August 9, 2004. On appeal, Mr. Biesk contends that the correspondence he "requested was written to a specific individual involved in a personal dispute with the state lawmaker. " In his view, KRS 61.878(1)(h) is therefore inapplicable because "such correspondence would not be part of an ongoing or closed criminal investigation[.]" Rather, the correspondence "was essentially aimed at warning the individual to cease communications with the state legislator. " According to Mr. Biesk, the subject correspondence "may constitute Mr. Hickman, a public official, working on the legislator's behalf, in effect as his personal attorney."
Upon receiving notification of Mr. Biesk's appeal from this office, Mr. Hickman supplemented his response via facsimile. Elaborating upon his position, Mr. Hickman argues:
Specifically, a complaint was filed in this office alleging that a criminal offense had been committed by an individual against a local state legislator. The nature of the complaint alleged [was] that the legislator had been threatened in violation of KRS 508.080.
The information gathered as a result of this complaint most definitely falls within the exemption afforded county attorneys under KRS 61.878(1)(h). To hold otherwise could have a potential "chilling effect" upon victims of crimes coming forward with criminal complaints because of the chance that it could be subject to an Open Records request and be held up for public scrutiny. It should make no difference if the victim is a public official or any other citizen.
Because resolution of this appeal necessarily turns on whether the correspondence at issue can properly be characterized as "records or information compiled and maintained by" a county attorney "pertaining to criminal investigations or criminal litigation[,]" the Attorney General requested that Mr. Hickman provide this office with copies of any existing records which are responsive to Mr. Biesk's request for in camera inspection. By facsimile dated August 25, 2004, Mr. Hickman fully complied with this request. Although we cannot reveal the contents, the responsive records can be described generally as a "complaint form," a criminal complaint, an arrest warrant, and a letter from Mr. Hickman to the individual against whom the allegations were made. Having inspected the requested records, this office concludes that Mr. Biesk's characterization of those records is inaccurate whereas governing precedent validates Mr. Hickman's position.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, we "are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
In construing the relevant language of KRS 61.878(1)(h), the Attorney General has observed:
In enacting this provision, the General Assembly clearly intended to affirm permanent protection to the records of the [County and] Commonwealth's Attorney[s] which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law.
93-ORD-137, p. 2 (emphasis added); 02-ORD-194; 02-ORD-112. Accordingly, "[n]o matter what the stage or status of the proceedings, the County and Commonwealth Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. " 96-ORD-77, p. 2; 02-ORD-194; 02-ORD-112;
Skaggs v. Redford, Ky., 844 S.W.2d 389, 390 (1993) ("[A]s we construe the statute, the [county and] Commonwealth Attorney's records . . . were already exempt under the obvious intention of the statute as it stood prior to the [1992] amendment [and t]he amendment is nothing more than a clarification of the obvious").
In light of these authorities, Mr. Biesk's argument is unpersuasive. Whatever the rationale underlying KRS 61.878(1)(h) may be, the protection it affords to records compiled and maintained by county attorneys and Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation "is absolute regardless of whether enforcement action is completed or a decision is made to take no action." 02-ORD-112, p. 2. Because the records at issue fall squarely within the parameters of KRS 61.878(1)(h), Mr. Hickman properly relied upon this provision in denying Mr. Biesk's request.
A party aggrieved by this decision may appeal it by initiating an 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.
Joe BieskAssociated PressRoom 243, State Capitol BuildingFrankfort, KY 40601
Charles HickmanShelby County Attorney501 Main StreetShelby County Courthouse, Suite 10Shelbyville, KY 40065
Footnotes
Footnotes
1 As explained by Mr. Biesk, he redacted the "names of the lawmaker and other person involved in this dispute because of the competitive nature of the news industry, and to protect their names from becoming public in the event the correspondence is not released."