Request By:
Ricky Fulcher
J. Gail Guiling
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Commonwealth's Attorney for the 7th Judicial Circuit violated the Open Records Act relative to Ricky Fulcher's request for "Grand Jury Transcripts of Testimony Tapes" involved in his case in the Logan Circuit Court, Ind. Nos. 01-CR-00157 and 01-CR-00179. Mr. Fulcher asserts that he received no response to his request, prompting him to initiate this appeal. For the reasons that follow, we find that although the Commonwealth's Attorney may have failed to comply with the procedural requirements of the Open Records Act, set forth at KRS 61.880(1), the Commonwealth's Attorney could properly withhold access to the requested records under authority of KRS 61.878(1)(h).
In 1992, the Kentucky Open Records Act was amended to include the following permanent exception to the general rule of mandatory disclosure of public records:
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.
KRS 61.878(1)(h) (emphasis added). In enacting KRS 61.878(1)(h), the General Assembly clearly intended to afford permanent protection to records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. See Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1993) and 93-ORD-137. Accordingly, we find that the Commonwealth's Attorney for the 7th Judicial Circuit was under no obligation to honor Mr. Fulcher's request. 05-ORD-140; 04-ORD-158; 04-ORD-099.
This exception does not, however, relieve the Commonwealth's Attorney of the procedural obligations under KRS 61.880(1). 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 order to fully discharge the obligations under the Open Records Act, the Commonwealth's Attorney must respond to an open records request in writing and within three business days, and advise the requester that the records he is seeking are excluded from inspection by operation of KRS 61.878(1)(h). The failure to do so would constitute a violation of KRS 61.880(1).
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.