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 Shelby County Attorney Hart T. Megibben properly relied on KRS 61.878(1)(h) in denying Antoinette Taylor's September 15, 2010, request to inspect and obtain copies of all "information and data on closed investigation reports number 190 and 202" and "all the basic information about the prosecutor's investigation [in]to the incidents" at a specified address on August 26, and September 12, 2010.
KRS 61.878(1)(h) provides, in 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 of the [County Attorney and the] Commonwealth's Attorney, regardless of origin." By its express terms KRS 61.878(1)(h) also applies to all records in the investigative files of the County Attorney or Commonwealth's Attorney regardless of what stage of proceeding the case under investigation has reached. Accordingly, we find that the Shelby County Attorney did not violate the Open Records Act in denying Ms. Taylor's request. The same or similar records may be accessible through other avenues but not through the County Attorney.
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.
Antoinette TaylorHart T. Megibben