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 Commonwealth's Attorney for the 30th Judicial District violated the Kentucky Open Records Act in denying the request of Esau Milliner to receive a copy of "the Grand Jury minutes, and any other relevant documents, statements, testimonies, etc., used in getting an indictment under Case No. 06-CR-0367." By letters dated August 17, 2007, and September 10, 2007, the Jefferson County Grand Jury Staff advised Mr. Milliner that his case "has been finally adjudicated" according to court records; therefore, his request was denied. In a letter dated September 24, 2007, Mr. Milliner initiated this appeal from the denial of his request(s). Upon receiving notification of Mr. Milliner's appeal from this office, Harry J. Rothgerber, First Assistant Commonwealth's Attorney, responded on behalf of Commonwealth's Attorney R. David Stengel, 1 correctly arguing that records implicated by Mr. Milliner's request are exempt from application of the Open Records Act by operation of KRS 61.878(1)(h). Enclosed with Mr. Rothgerber's response is a copy of 05-ORD-040, "a decision directly on point related to an inmate who requested copies of his Grand Jury records." Also enclosed is a copy of 00-ORD-116, "a decision related to a similar inmate request made to the Fayette Commonwealth's Attorney in 2000," which, as correctly observed by Mr. Rothgerber, is the "underlying basis" for denying such requests. It is the Commonwealth's "strong position that, not only are Grand Jury records confidential, pursuant to RCr 5.24 unless a defendant is presently indicted, but that such records are exempt from inspection under KRS 61.878(1)(h)."
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 under KRS 61.878(1)(h). In our view, 00-ORD-116 and 98-ORD-197 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See also 06-ORD-229; 05-ORD-195; 05-ORD-040; 04-ORD-153. Although the Commonwealth's Attorney's Office initially failed to cite KRS 61.878(1)(h) and briefly explain how it applies, in accordance with KRS 61.880(1), it properly relied upon this exception in denying Mr. Milliner's request. 2
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.
Footnotes
Footnotes
1 According to Mr. Rothgerber, the events which culminated in this appeal can be summarized as follows:
In fact, Inmate Milliner's original request for Grand Jury materials, dated August 6, 2007, on a Department of Finance form, was post-marked on August 8, 2007, and mistakenly sent to the attention of the Jefferson County Clerk. Although the date that the County Clerk received it is unknown, it was forwarded to this office and received on August 13, 2007. Eventually, it was directed to our Grand Jury unit which responded in a timely manner to Inmate Milliner as indicated in the letter dated August 17, 2007, from the Jefferson County Grand Jury staff. (Although the greeting in this letter mistakenly says "Dear Mr. Cargill," it is addressed to Mr. Esau Milliner.) It appears that the inmate then sent a copy of his original request to the Grand Jury for a second time. The date that the Grand Jury staff received the second request is unknown, but Inmate Milliner's second request was denied in a letter dated September 10, 2007.
Copies of all of this correspondence are enclosed with Mr. Rothgerber's response. To the extent Mr. Milliner was attempting to request Grand Jury records from the Jefferson Circuit Court Clerk, to whom the copy of the handwritten request attached to his letter of appeal is directed, this office advises him that records in the custody of circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2); accordingly, circuit court clerks are not subject to the provisions of the Open Records Act. See 98-ORD-6.
2 As evidenced by KRS 61.882(5), only the courts are empowered to award costs, including attorney's fees, and to award the person "an amount not to exceed twenty-five ($ 25) dollars for each day that he was denied the right to inspect or copy said public record" as requested by Mr. Milliner. Consequently, this office could not afford Mr. Milliner such relief even if he prevailed on the merits.