Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Commonwealth's Attorney for the 53rd Circuit violated the Open Records Act in the disposition of Ralph Philpott's October 4, 2013, request for "[a]ll Grand Jury hearing testimony or transcripts for Spencer Co. indictments 07-CR-00017 and 08-CR-00029 in which [Mr. Philpott was] the defendant." The appellant, Joan Philpott, is Ralph Philpott's mother. We find that the Commonwealth's Attorney violated KRS 61.880(1) by failing to respond to Mr. Philpott's request, but that nondisclosure of the grand jury transcripts was proper under KRS 61.878(1)(h).
In her letter of appeal, Ms. Philpott indicates that her son received no response to his request. The Commonwealth's Attorney, who was promptly notified by this office that Ms. Philpott had initiated this open records appeal on her son's behalf, did not refute Ms. Philpott's allegation or respond to notification of her appeal. This omission constituted a violation of KRS 61.880(1) which provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although KRS 61.878(1)(h) relieves the Commonwealth's Attorney of her duty to disclose "records or information compiled and maintained [by her office] . . . pertaining to criminal investigations or criminal litigation," it does not relieve her of the duty to issue a written response to an open records request for these records within three business days, to identify the specific exception authorizing nondisclosure, and to explain how the exception applies to the record(s) withheld.
Nevertheless, KRS 61.878(1)(h) authorizes nondisclosure of "records or information compiled and maintained by county or Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation." Such records, when compiled and maintained by county or Commonwealth's Attorneys, "remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." KRS 61.878(1)(h). Shortly after the enactment of KRS 61.878(1)(h), the Attorney General recognized that the provision was "intended to afford permanent protection" to the referenced records and that those records were "forever exempt from public inspection under the Open Records Law." 93-ORD-137, p. 2. Several years later, this office determined that "[n]o matter what the stage or status of the proceedings, the Commonwealth's Attorney may invoke KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. " 96-ORD-77, p. 2. 1 In 00-ORD-116, we affirmed a Commonwealth's Attorney's reliance on KRS 61.878(1)(h) as the basis for withholding grand jury transcripts, acknowledging that our analysis in an open records appeal "is confined to KRS 61.878(1)(h) and its application to the requested [transcript]." 00-ORD-116, p. 2. In closing, we observed that RCr 5.16:
establishes the duties of the Commonwealth's Attorney relative to recordation, retention, and release of grand jury testimony. The Attorney General cannot define the scope of these duties in a legally binding open records decision, nor is he empowered to enforce the Rules of Criminal Procedure. Rather, it is for the courts to make this determination, and to afford relief to the "person indicted" where appropriate.
00-ORD-116, p. 2. Based on these authorities, we find that nondisclosure of the requested grand jury transcripts was proper under 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:
Joan PhilpottLaura Witt Donnell
Footnotes
Footnotes
1 In a recent Kentucky Supreme Court opinion, the Court confirmed this interpretation opining that, pursuant to KRS 61.878(1)(h), "a prosecutor's litigation files are excluded in toto from the Act," and that "the prosecutor's files are, in that regard, unique." City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013).