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 Jefferson County Commonwealth's Attorney violated the Kentucky Open Records Act in denying the request of Kenny Goben for a copy of the "criminal complaint against Cindy Tifford" and supporting documentation, all of which Mr. Goben apparently mailed to Assistant Commonwealth's Attorney Mark Baker on April 24, 2006. By letter dated June 27, 2006, First Assistant Commonwealth's Attorney Harry J. Rothgerber responded on behalf of Commonwealth's Attorney David Stengel. 1 Having discussed the matter with Mr. Baker, who indicated to Mr. Rothgerber that he "received unsolicited information" from Mr. Goben "several months ago," Mr. Rothgerber advised that said materials "can no longer be located in this office, and their whereabout [s] are unknown. Therefore, they cannot be returned." 2 With the exception of procedural irregularities, the Office of the Commonwealth's Attorney did not violate the Act in denying Mr. Goben's request.
As further observed by Mr. Rothgerber, "this is not the proper office to which a criminal complaint should be filed." To the contrary, the Office of the Commonwealth's Attorney "prosecute[s] felonies. We do not process or file criminal complaints." Any complaints regarding criminal wrongdoing "should be investigated by the appropriate local law enforcement agency or you should go to the Hall of Justice to file a criminal complaint at the Clerk's desk." By letter dated June 29, 2006, Mr. Goben initiated this appeal from the denial of his request, noting that he finds it "very disturbing that they (the Commonwealth['s] Attorney's Office) couldn't forward it to the [proper] office or simply mail it back." While Mr. Goben's point is well-taken, the fact remains that records compiled or maintained by Commonwealth's attorneys "pertaining to criminal investigations or criminal litigation" are exempted from application of the Act by operation of KRS 61.878(1)(h), and "shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action."
Upon receiving notification of Mr. Goben's appeal from this office, Mr. Rothgerber supplemented his initial response. In relevant part, Mr. Rothgerber advises:
The Commonwealth's response to Inmate Goben's appeal is summarized by my letter to him dated June 27, 2006. This office does not posses the materials he wishes to view. They can no longer be located in this office. [Their] whereabouts are unknown. They were received by one of our Assistant Commonwealth's Attorneys in an unsolicited manner. We have nothing to be returned. Mr. Goben knows what they contain since he sent them to us. If we had them, I would gladly send the originals to Mr. Goben, but they cannot be located. I attempted to assist Mr. Goben by steering him in the right direction to the Circuit Court Clerk's Office for further action on his complaint.
Reiterating his earlier concern, Mr. Goben replies that "one would think that professional courtesy would cause one to forward the information to the proper office, or simply mail the complaint and information back with instructions as to whom" it should be filed with; we agree. However, such an issue is not justiciable in the context of an Open Records appeal.
In our view, 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. Because records of the type requested are permanently exempt by operation of KRS 61.878(1)(h), the Office of the Commonwealth's Attorney did not violate the Act in denying Mr. Goben's request.
Kenny Goben455 29th StreetAshland, KY 41101
R. David StengelCommonwealth's Attorney514 W. Liberty StreetLouisville, KY 40202-2887
Harry J. RothgerberFirst AssistantCommonwealth's Attorney514 W. Liberty StreetLouisville, KY 40202-2887
Footnotes
Footnotes
1 In failing to issue a written response within three business days of receipt, the Office of the Commonwealth's Attorney violated KRS 61.880(1). 05-ORD-064, pp. 4-6, a copy of which is attached hereto and incorporated by reference; 05-ORD-241. Although Mr. Rothgerber explained that Mr. Goben's request dated June 16, 2006, was placed in his office mailbox during the week he was absent, neither the "press of business nor the absence of the official custodian justifies a delay in providing access to public records." Id., citing 02-ORD-165, p. 3. While records of the type requested are exempt from application of the Act, a public agency such as the Commonwealth's Attorney's Office is nevertheless required to issue a written response citing the applicable exception, and briefly explaining how it applies to records withheld, in a timely fashion pursuant to KRS 61.880(1).
2 As long recognized by the Attorney General, a public agency cannot honor a request for records which do not exist or records which the public agency does not possess. 06-ORD-020, pp. 2-5; 05-ORD-241.