Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Commonwealth's Attorney for the Second Judicial Circuit violated the Open Records Act in connection with James Potter's September 2, 2011, request for copies of records. For the following reasons, we find no violation of the Act.
On September 2, 2011, Mr. Potter made a request for the following:
Log of open case file for James Potter. Case Number 08-CR-00386. I would like to know when file was checked, by who if noted. When were CDs and DVDs checked out? By who & for how long? I would also like an index showing what all is suppos[ed] to be in the case file if Poss[i]ble.
On September 9, 2011, Daniel Y. Boaz, Commonwealth's Attorney, responded: "Your request to obtain records is denied. The Commonwealth's Attorney's office is exempt from open records requests pursuant to KRS 61.878(h)."
In his appeal dated September 12, 2011, Mr. Potter clarifies that he meant to say "open file discovery" rather than "open case file, " and adds:
This log has nothing to do with the contents of the file other than act like a chain of custody to account for the contents and track who has removed / returned the items so nothing is lost or damaged. I wish to know when my counsel and investigator rev[ie]wed the discovery and reports that were on CD and DVD format.
In 10-ORD-006, we ruled that KRS 61.878(1)(h)'s exception for "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation" would include sign-in logs showing when a convicted offender might have visited the Jefferson County Attorney's office in connection with criminal litigation. Seeing no essential difference between those records and the ones sought by Mr. Potter, we believe that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. As records compiled and maintained by the Commonwealth's Attorney that pertain to criminal litigation, the requested records are forever excluded from public inspection by operation of KRS 61.878(1)(h).
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.
Distributed to:
James Potter, # 237268Daniel Y. Boaz, Esq.