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 Mason County Attorney did not violate the Open Records Act in denying Steven Farmer's April 1, 2006, request for "the entire investigation, criminal filings, hospital reports, inter alia, on the 28 March [2006] event [described in the body of his request], in the same form in which they've come to you." Although the County Attorney erred in failing to respond in writing, and within three business days, to Mr. Farmer's request per KRS 61.880(1), 1 he subsequently remedied this violation by advising that he maintains no responsive records, 2 and that if he did, those records would enjoy permanent protection from public disclosure under KRS 61.878(1)(h) . 3 It is the decision of this office that 06-ORD-107, a copy of which is attached hereto and incorporated by reference, is dispositive of the issues on appeal.
Insofar as the Mason County Attorney did not rely on KRS 61.878(1)(a) in denying Mr. Farmer's request, it is unclear why he now argues that "the 61.878 and 05-ORD-166 'privacy rights' as well as those supported by 'Zink,' do not apply . . . ." Resolution of this appeal does not turn on KRS 61.878(1)(a), but on the nonexistence of the requested documents and KRS 61.878(1)(h). We affirm the Mason County Attorney's denial of Mr. Farmer's request on these bases.
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.
Steven FarmerP.O. Box 603Dyersburg, TN 38025-0603
John F. EstillMason County Attorney24 West 3rd StreetMaysville, KY 41056
Footnotes
Footnotes
1 The County Attorney indicates that "it is [his] intent to respond to no further requests from [Mr. Farmer]." Given the clear statutory requirements set forth at KRS 61.880(1), we do not believe this is a viable option unless he successfully builds a case of an unreasonable burden, or an intent to disrupt his office's essential functions, under KRS 61.872(6).
2 The County Attorney thus advised:
There are no such documents in the possession of the undersigned. Regardless, if the case referred to (Mason District Court, Case No. 06-M-00198 . . .) proceeds to trial, then a file will be opened and investigative materials collected. However, such records are exempted by virtue of KRS 61.878(1)(h).
3 KRS 61.870(1)(h) provides:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. 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 the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added.)