Request By:
Terry Hunt, # 189558
Timothy R. Coleman
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Commonwealth's Attorney for the 38th Judicial Circuit violated the Open Records Act by failing to respond to Terry N. Hunt's November 23, 2007, request for a copy of "the confession of Justin Lee Hawkins on or about the date of August 22, 2005, which refers to [Mr. Hunt] by name." 1 Having received no response to his request, Mr. Hunt initiated this appeal.
For the reasons that follow, we find that the Office of the Commonwealth's Attorney violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Hunt's request. However, "records or information compiled and maintained by . . . Commonwealth's attorneys pertaining to criminal litigation" enjoy permanent protection from public inspection under authority of KRS 61.878(1)(h). This exemption extends to the requested confession. Unless the Commonwealth's Attorney wishes to waive this exemption, he may permanently withhold the record.
The Office of the Commonwealth's Attorney violated the Open Records Act in failing to respond to Mr. Sherrill's request in writing, and within three business days. KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed, "The language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). It requires a timely, written response containing "particular and detailed information." Id . Although KRS 61.878(1)(h) authorizes the Commonwealth's Attorney to permanently withhold records and information which relate to criminal investigations or criminal litigation, that exemption does not relieve him of his duty under KRS 61.880(1) to respond to the request. We urge the Office of the Commonwealth's Attorney to bear these observations in mind in his handling of future open records requests.
We nevertheless conclude that the Office of the Commonwealth's Attorney is not legally obligated to release the requested confession to Mr. Hunt. KRS 61.878(1)(h) is dispositive of the issue on appeal. That statute authorizes the nondisclosure of:
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.) In 93-ORD-137, this office analyzed KRS 61.878(1)(h). At page 2 of that decision, we observed:
In enacting this provision the General Assembly clearly intended to afford permanent protection to the records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law.
Thus, "[n]o matter what the stage or status of the proceedings, the Commonwealth's Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. " 96-ORD-77, p. 2. See also,
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1993) and
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). The Office of the Commonwealth's Attorney may, of course, waive the exemption and disclose the requested records to Mr. Hunt.
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 In an accompanying letter, Mr. Hunt advised the Commonwealth's Attorney that Mr. Hawkins "confess[ed] to the arson of Gerald Hawkins & Deniece [sic] Hawkins' home/residence."