Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, 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 although her original response to Jeff Gearding's May 27, 2010, request was deficient, the Campbell County Commonwealth's Attorney, Michelle Snodgrass, remediated these errors in her supplemental response to Mr. Gearding's June 18, 2010, open records appeal, a copy of which she forwarded to Mr. Gearding. Accordingly, we find that the Commonwealth's Attorney did not violate the Open Records Act in her ultimate disposition of Mr. Gearding's request for "all documentation, warrants issued, and press releases . . . [by] the Campbell County Detention Center or on their behalf [from May 27, 2005, to the present] . . . pertaining to walk-aways, run-offs, actual escapes, and charging documents with an escape charge from [the Detention Center]."
In her June 3, 2010, response Ms. Snodgrass invoked KRS 61.878(1)(h), authorizing permanent nondisclosure of "records or information compiled and maintained by county attorneys or Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation." On this basis, she asserted that "any records which are in the Campbell County Commonwealth's Attorney's possession are forever exempt." Shortly thereafter, Mr. Gearding initiated this appeal questioning Ms. Snodgrass' position in light of public safety concerns and noting that her office "should be treated as any other law enforcement agency due to correctional facility reporting escapes to commonwealth's attorney's office to obtain warrant to enter into system. [Sic.]"
In supplemental correspondence directed to this office and to Mr. Gearding, Ms. Snodgrass modified her position by explaining that "Mr. Gearding requested a number of items that are not in the custody of the Commonwealth's Attorney's Office." Invoking KRS 61.872(4), which provides that "if the person to whom the application is directed does not have custody or control of the public records requested, the person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records, " she advised Mr. Gearding that her office does not maintain the records he seeks but suggested that the warrants identified in his request could be obtained from the Kentucky State Police which maintains the e-warrant server. She further advised him that reports and press releases relating to escapes "would be in the custody of the Campbell County Detention Center" if such reports or press releases exist. With reference to Mr. Gearding's request for "all reports . . . pertaining to walk-aways, run-offs, actual escapes," Ms. Snodgrass referred him to the Kentucky State Police which "usually investigate[s]" such charges. In each instance, Ms. Snodgrass provided Mr. Gearding with the custodial agencies' business addresses.
Finally, Ms. Snodgrass reaffirmed her denial of that portion of Mr. Gearding's request relating to "charging documents with an escape charge." She again invoked KRS 61.878(1)(h) in refusing to honor his request for "documents generated or created by the Commonwealth's Attorney's Office" inasmuch as such documents "would have been generated solely for litigation purposes." Her position finds clear support in existing law as evidenced by 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), numerous open records decisions of the Attorney General including 08-ORD-016, a copy of which is attached hereto and incorporated by reference, and the language of the statute itself. However compelling Mr. Gearding's interest in these records may be, Kentucky's legislature, courts, and Attorney General have recognized that the competing prosecutorial interests are superior.
Nevertheless, Ms. Snodgrass suggested a variety of other avenues through which Mr. Gearding could obtain the records identified in his request. In so doing, she satisfied the requirements of KRS 61.872(4). That statute provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Although her original response was deficient insofar as it did not contain referring information, Ms. Snodgrass rectified her error in supplemental correspondence which she transmitted to Mr. Gearding. To this extent, she corrected the errors in her original response and thereafter complied with the provisions 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.
Jeffrey A. GeardingMichelle Snodgrass