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 Eighth Judicial Circuit violated the Kentucky Open Records Act in failing to issue a timely written response to, and ultimately denying Samuel D. Harris' February 18, 2011, request, directed to Assistant Commonwealth's Attorney Michael V. Pearson, for copies of the "'Grand Jury Transcripts' pertaining to the Grand Jury hearing in my case," "All 'Witness Statements' pertaining to my case," and "all video surveillances, [i]ncluding the [b]usiness, police car [sic] 'Indash [sic] camera.'" Having received no response of any kind, Mr. Harris initiated this appeal by letter dated February 28, 2011. Upon receiving notification of Mr. Harris' appeal from this office, Commonwealth's Attorney Christopher T. Cohron responded on behalf of his Office, advising, in relevant part, that all of the records in dispute are exempt from disclosure pursuant to KRS 61.878(1)(h) and
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992). Mr. Cohron is correct in this assertion. 1
With regard to application of KRS 61.878(1)(h) , the analysis contained in 00-ORD-116 and 04-ORD-153 is controlling; a copy of each decision is attached hereto and incorporated by reference. In relevant part, KRS 61.878(1)(h) provides that "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation," shall remain exempt "after enforcement action, including litigation, is completed or a decision is made to take no action." Because the records in dispute fall within the parameters of this exception, they are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h); accordingly, the Office of the Commonwealth's Attorney for the Eighth Judicial District cannot be said to have violated the Act in ultimately denying Mr. Harris' 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 The Office of the Commonwealth's Attorney for the Eighth Judicial Circuit violated the Act from a procedural standpoint in failing to issue a timely written response upon receipt of the request per KRS 61.880(1); however, this office will not unnecessarily lengthen this decision by reiterating the well-established law regarding application of this provision.