Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Pike Circuit Court Clerk violated the Kentucky Open Records Act in failing to issue a written response within three business days of receiving Aaron Justice's August 26, 2009, request for a copy of certain documents relating to Case No. 98-CR-00169. Upon receiving notification of Mr. Justice's appeal from this office, W. David Deskins, Clerk, advised that his Office received the request on September 21, 2009, and the Circuit Criminal Clerk forwarded a copy of the "motion to enter guilty plea, judgment, and final judgment on the same day" to Mr. Justice. 1 On October 5, 2009, the Clerk's Office received payment from Mr. Justice for the copies of records from his juvenile proceedings, and the Juvenile Clerk "then sent the request for audio tapes to the Administrative Office of the Courts." Attached to Mr. Deskins' written response are copies of the "letters, certified mail receipts, [and] receipt of defendant's payment." In closing, Mr. Deskins advised that certain items "should have been requested from the Commonwealth['s] Attorney and not the Pike Circuit Clerk, such as: discovery, evidence, ATM [t]ape and 911 recording, police statements, reports, etc. Commonwealth['s] Attorney's phone [sic] 606-433-7500." 2
Because 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), the Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Pike Circuit Court Clerk cannot be said to have violated the Act relative to Mr. Justice's request. In our view, 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 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 Attached to Mr. Deskins' response is a copy of a very similar written request dated August 3, 2009, which his Office marked as received on September 21, 2009. The reason for the delay is unclear from the record. It also remains unclear whether Mr. Deskins actually received the August 26, 2009, request. Further discussion is unwarranted given the holding of this decision.
2 Pursuant to KRS 61.872(4), a public agency that "does not have custody or control of the public record requested," shall notify the requester and "shall furnish the name and location of the official custodian of the agency's public records. " Although the Clerk only provided Mr. Justice with a telephone number, his Office is not governed by the provisions of the Act; consequently, it cannot be said to have violated the Act in failing to comply with KRS 61.872(4). In any event, "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation" are permanently exempt from the Act per KRS 61.878(1)(h).