Request By:
Edgar A. Scott, # 167876
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Kathleen N. Phillips
Assistant Commonwealth's Attorney
116 N. Upper Street, Suite 300
Lexington, KY 40507
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Fayette Commonwealth's Attorney violated the Kentucky Open Records Act in denying the request of Edgar A. Scott, Jr. for copies of specified audiotapes, reports, correspondence, and "the official circuit court record" including "each and every exhibit" admitted into evidence during the trial relating to "Indictment number 03-CR-00666 and Appeal number 2004-CA-000039." Upon receiving notification of Mr. Scott's appeal from this office, Assistant Commonwealth's Attorney Kathy Phillips, to whom Mr. Scott directed his request, forwarded a copy of her response dated July 18, 2005, to this office for review. Citing KRS 61.878(1)(h), Ms. Phillips advised Mr. Scott that the Office of the Commonwealth's Attorney is not required to honor his request for the "specific correspondence" requested. However, all of the records requested "have been previously provided" to Mr. Scott's trial counsel "pursuant to the rule of Discovery and/or introduced into evidence at the trial and are thus part of the Court's record."
Although the Office of the Commonwealth's Attorney apparently failed to respond within three business days as mandated by KRS 61.880(1), Ms. Phillips subsequently sustained the burden of proof, which is assigned to her office by virtue of KRS 61.880(2)(c), in denying Mr. Scott's request. As consistently recognized by the Attorney General, records or information compiled and maintained by Commonwealth's attorneys pertaining to criminal investigations or litigation, such as the items requested, are permanently excluded from application of the Open Records Act pursuant to KRS 61.878(1)(h). In our view, 00-ORD-116 and 04-ORD-153, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. On this basis, the denial of Mr. Scott's request by the Office of the Fayette Commonwealth's Attorney is affirmed.
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.