Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Commonwealth's Attorney for the 30th Judicial District violated the Kentucky Open Records Act in denying the request of Amos Williams for a "'Stamped Copy Filed' of his Pro Se Motion for a 'Fast-N-Speedy Trial. '" Although the Office of the Commonwealth's Attorney violated KRS 61.880(1) in failing to issue a written response within three business days, citing the applicable statutory exception and briefly explaining how it applied, the agency satisfied its burden of proof in responding to Mr. Williams' appeal. In accordance with prior decisions of this office, including 00-ORD-116 and 04-ORD-153, the Office of the Commonwealth's Attorney's ultimate disposition of Mr. Williams' request is affirmed.
Upon receiving notification of Mr. Williams' appeal from this office, Harry J. Rothgerber, First Assistant Commonwealth's Attorney, responded on behalf of the Office, advising that Assistant Commonwealth's Attorney David Scott received a pro se motion from Mr. Williams entitled "Motion for Speedy Trial on Untried Indictment within 180 Days after Prisoner's Request for Final Disposition," on or about July 16, 2009, at which time "the trial date of November 16 had already been set." Having been advised by Mr. Williams' legal counsel that no action was necessary, Mr. Scott "was under no compunction to respond to this pro se motion in any way, manner, or form. And, [Mr.] Williams had no right to dictate how [Mr.] Scott responded to his motion."
According to Mr. Rothgerber, the "follow-up letter" (which Mr. Williams referred to expressly as "Re: Open Records Request For a Copy of the 'Stamped Copy' Rec'd") sent by Mr. Williams on August 15, 2009, was received in his office on August 18, 2009, but Mr. Scott construed it "as part of the ongoing pro se motion for [a] fast and speedy trial" and, in light of his prior conversation with Mr. Williams' counsel, "did not see any need to respond since the matter was settled between the lawyers of record. Furthermore, it appears that what Mr. Williams was seeking in his letter dated August 15, 2009, was not in existence" in the Office of the Commonwealth's Attorney. 1 Mr. Williams asked for a "stamped copy" of his pro se motion, but Mr. Scott "did not have in his possession such a 'stamped copy filed.' Mr. Scott did not even have a 'stamped copy received' of the envelope that the original pro se motion arrived in." In closing, Mr. Rothgerber advised that it "was plainly within the Commonwealth's discretion to reply to his July pro se motion, and Mr. Scott chose not to after discussing it with [Mr.] Williams' counsel of record." Although Mr. Williams later asked for a copy of the "stamped copy filed" of his original request letter/motion, by that time it "had become part of Mr. Scott's file and was exempt from open records under the provisions of KRS 61.878(1)(h)."
As the Attorney General has consistently recognized, any records or information compiled and maintained by Commonwealth's attorneys pertaining to criminal investigations or litigation, such as the item requested, are permanently excluded from application of the Open Records Act under KRS 61.878(1)(h). In our view, the analysis contained in 00-ORD-116 and 04-ORD-153 is 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; 98-ORD-197. 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 as the basis for ultimately denying Mr. Williams' request.
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 At a minimum, the Office of the Commonwealth's Attorney was required to advise Mr. Williams in a timely written response that no such record existed in the custody of the agency. See 07-ORD-188 and 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records or those which it does not possess.