Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been represented 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 41st Judicial District did not violate the Open Records Act in the disposition of Norma Harris' March 1, 2005, request 1 for "a copy of the Grand Jury tape that took place in Leslie County, Kentucky, on August 04, 2004." We believe that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is controlling.
The Commonwealth's Attorney previously furnished Ms. Harris' attorney with a copy of the referenced grand jury transcript, per RCr 5.16. Given the express language found in KRS 61.878(1)(h), and analyzed in depth in 00-ORD-116, he had no legal obligation under the Open Records Act to furnish Ms. Harris with a copy of the transcript or tape. 2 Although he failed to cite KRS 61.878(1)(h), 3 his disposition of her request was, in all other material respects, consistent with the requirements of the Open Records Act. We therefore affirm his denial of Ms. Harris' request. 4
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.
Norma Harris235 Henry Fork RoadHyden, KY 41749
Gary H. GregoryCommonwealth's Attorney41st Judicial Circuit307 Main StreetManchester, KY 40962
Footnotes
Footnotes
1 Ms. Harris submitted a second request to the Commonwealth's Attorney on June 23, 2006. Ms. Harris did not enclose a copy of that request, and we therefore do not consider it per 40 KAR 1:030 Section 1.
2 KRS 61.880(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.
3 Per KRS 61.880(1).
4 Had we reached a contrary conclusion, this office would not be empowered to impose a monetary penalty on the Commonwealth's Attorney as Ms. Harris requests. KRS 61.880(2) establishes the authority of the courts to award costs, attorneys fees, and monetary award to a prevailing party. Similar authority is not reposed in the Attorney General.