Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney's Office for the 30th Judicial Circuit ("Commonwealth's Attorney") erred in not providing investigative documents and documents that do not exist. We find that the Commonwealth's Attorney did not violate the Open Records Act in not providing investigative documents and documents that do not exist.
Keith Dickerson ("Dickerson") submitted an open records request to the Commonwealth's Attorney on Dec. 17, 2013. Dickerson requested the following records: "1) All video interviews pertaining to Jacis Kyser, Monica Dickerson, Kim Murrell. 2) A copy of Indictment, copy of trial minutes. " The Commonwealth's Attorney responded on Dec. 26, 2013. In its response, the Commonwealth's Attorney stated that it received the request on Dec. 23, 2013. It denied access to the records on the grounds that "it is the consistent policy of this office to invoke the exemption provisions of KRS 61.878(1)(h), relating to records or information compiled by this office in criminal investigations or criminal litigation."
Dickerson initiated this appeal on Jan. 6, 2013. In its response to Dickerson's appeal, the Commonwealth's Attorney replied that "the sole reason for denying the request was the exemption set forth under KRS 61.878(1)(h)." The Commonwealth's Attorney further added that "any trial minutes, if there had been a trial, would be in the possession of the Circuit Courts, not the Office of the Commonwealth's Attorney," but since Dickerson pled guilty to multiple counts in the indictment, there was no trial.
KRS 61.878(1)(h) provides:
records or information pertaining to criminal investigations or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
This office has long interpreted KRS 61.878(1)(h) as protecting investigative documents of Commonwealth's Attorneys in perpetuity. "In enacting this provision the General Assembly clearly intended to afford permanent protection to the records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law." 93-ORD-137. "No matter what the stage or status of the proceedings, the Commonwealth's Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. " 08-ORD-016. Accordingly, the Commonwealth's Attorney did not violate the Open Records Act in failing to provide a request for investigative documents in its possession.
Regarding the trial tapes, the Commonwealth's Attorney stated that no such trial tapes exist, and even if they did, they would not be in the Commonwealth Attorney's possession. "A public agency cannot afford a requester access to a record that it does not have or which does not exist." 11-ORD-209. Accordingly, the Commonwealth's Attorney did not violate the Open Records Act in not providing trial tapes that do not exist, and would not be in its possession if they did.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Keith Dickerson # 246245Hon. Thomas D. Wine