Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Todd Circuit Court Clerk violated the Kentucky Open Records Act in the disposition of David Bennett's January 17, 2012, request for one copy of the "Grand Jury proceedings under the Kentucky Revised Statute of RCr 5.16(3) and under the United States Constitution the Fifth Amendment [sic] as these records is [sic] related to my conviction under 61.884 which [sic] this evidence of documents is grounds for my appeal under Case No. 09-CR-00069." In a timely written response, Todd Circuit Court Clerk J. Mark Cowherd advised Mr. Bennett per KRS 61.872(4) that his office "does not ever have possession of the audiotaped recordings of Grand Jury proceedings." Rather, those recordings are "made and kept by" the Commonwealth's Attorney. Mr. Cowherd further advised that the Office of the Commonwealth's Attorney would "have provided a copy of the tape to your attorney as part of your case discovery. The paper indictment is the only thing this office receives from the Grand Jury." 1
Because records in the custody of district and circuit court clerks are properly characterized as court records, to which the Open Records Act does not apply, rather than public records within the meaning of KRS 61.870(2), the Attorney General has long recognized that district and circuit court clerks are not subject to the provisions of the Open Records Act; consequently, the Todd Circuit Court Clerk cannot be said to have violated the Act relative to Mr. Bennett's request. On this issue, the analysis contained in 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling. "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.
Distributed to:
David BennettJ. Mark Cowherd
Footnotes
Footnotes
1 In the interest of clarity, this office notes that under KRS 61.878(1)(h), "records 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 [the Open Records Act] and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action."