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 Office of the Commonwealth's Attorney for the 32nd Judicial Circuit violated the Kentucky Open Records Act in failing to issue a written response upon receipt of John H. Estep's April 18, 2013, request for a copy of his arrest record, the "Grand Jury minutes, testimony and indictment leading to that arrest, " discovery, including "affidavits, testimony, statements, interviews, photos, diaries and journals obtained or conducted before or after" his arrest, reports of any physical exams performed on the "alleged victims," results of any rape test kits utilized on the "alleged victims," reports of "samples taken from alleged victims for possible DNA comparison," and a "letter from that office (J. Stewart Schneider) to me stating that my wife, Betty Estep, . . . brought in my video camera and videos of alleged victims." Having received no response to his request, 1 Mr. Estep initiated this appeal by letter dated May 6, 2013.
The Commonwealth's Attorney violated KRS 61.880(1) in failing to issue a written response within three business days of receiving the request, including a statement of the statutory exception authorizing the withholding of the records and a brief explanation of how the exception applies; he also chose not to respond upon receiving the notification of Mr. Estep's appeal issued on May 10, 2013, by this office. However, the records being sought are permanently excluded from application of the Act pursuant to KRS 61.878(1)(h), which 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." The analysis contained in 00-ORD-116 and 08-ORD-016 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See also 98-ORD-197; 04-ORD-158; 06-ORD-229. With the exception of the noted procedural violation, the Commonwealth's Attorney cannot be said to have violated the Open Records Act. See 08-ORD-078; 09-ORD-175.
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:
John H. EstepDavid Justice
Footnotes
Footnotes