Request By:
Uriah Marquis Pasha
Darris L. Russell
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Muhlenburg County Attorney properly relied on KRS 61.878(1)(h) in denying Uriah Marquis Pasha's request for a copy of the Criminal Complaint submitted by him to the Muhlenburg County Attorney in August 2008, asking that a charge of official misconduct be brought against Dr. Hinkebein. That statute provides, in relevant part:
[R]ecords 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.
It is the decision of this office that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. 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). As the Supreme Court observed in Bowling , above at 339, KRS 61.878(1)(h) "appl[ies] equally to all records in the litigation files at the Commonwealth's Attorney, regardless of origin." In his response to this office, the county attorney advised that the requested record pertained to a criminal investigation in his office. Accordingly, we find that the Muhlenburg County Attorney did not violate the Open Records Act in denying Mr. Pasha's request.
By letter dated September 8, 2008, Mr. Pasha initiated the instant appeal having received no response to his request, dated August 28, 2008. The agency's failure to respond in writing to an open records request within three business days after its receipt, as required by KRS 61.880(1), constituted a procedural violation of the Open Records Act.
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.