Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Meade County Attorney Jessica Brown Roberts violated the Open Records Act in denying Elaine Matthews' February 26, 2014, request for "a copy of the CD that was created and provided to [Ms. Brown] by Meade County Deputy Bryce Rogers from the storage card he seized from a camera . . . [during] the incident of December 9, 2012" involving Ms. Matthews, a store owner, and the store owner's staff. Relying on KRS 61.878(1)(h), Ms. Roberts characterized the CD as a record "compiled and maintained by [the] county attorney . . . pertaining to criminal investigation or criminal litigation" that, by virtue of KRS 61.878(1)(h), "remain[s] exempted after enforcement action, including litigation, is completed or a decision is made to take no action." Ms. Matthews acknowledges that Ms. Roberts provided her with a CD containing "a few still pictures" of the incident, but asserts that she is entitled to "the intact CD created by Deputy Bryan Rogers and provided to Jessica Brown Roberts." Respectfully, we disagree.
KRS 61.878(1)(h) 1 provides, in relevant part:
[R]ecords 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 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.
In 93-ORD-137 this office undertook an analysis of KRS 61.878(1)(h), noting that in amending the provision in 1992, the General Assembly "clearly intended to afford permanent protection to the records of the [county and] Commonwealth's attorney which relate to criminal investigations or criminal litigation." 93-ORD-137, p. 2. "In other words," the Attorney General concluded, "these records are forever exempt from public inspection under the Open Records Law." Id., see also 96-ORD-77, p. 2 ("No matter what the stage or status of the proceedings, the [county and] and 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" ); 11-ORD-005 ("Binding precedent thus establishes that records or information compiled and maintained by the [county or] Commonwealth's attorney pertaining to criminal investigation or criminal litigation are permanently shielded from disclosure . . .").
In two recent opinions, the Kentucky Supreme Court reaffirmed this position. Contrasting county and Commonwealth's attorneys' criminal litigation files from criminal files in the custody of law enforcement agencies, in
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Supreme Court noted that "the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act . . . by singling them out" in KRS 61.878(1)(h). In the final footnote of the 25 page opinion, the Court "reiterate[d] that county attorney and Commonwealth's attorneys' files are treated differently after the 1992 amendment" to KRS 61.878(1)(h). Id. at 857. Four months later the Supreme Court revisited KRS 61.878(1)(h), recognizing that "The General Assembly enacted this portion of the statute in 1992, and by thus according blanket protection to the investigatory and prosecutorial files of county and Commonwealth's attorneys, relieved those agencies of the need to justify nondisclosure by a showing, otherwise required, that disclosure would harm the agency . . . ." In sum, the Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ."
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 69 (Ky. 2013). Nevertheless, the Court opined, KRS 61.878(1)(h) "does not preclude [the county or Commonwealth's attorney) from allowing [disclosure] , assuming, of course, that no other exemption applies." 2 Id. Ms. Roberts' exercised her prosecutorial discretion first by electing not to pursue criminal action against the store owner or her employees, and later by partially waiving the exemption and disclosing a redacted copy of the disputed CD. Our review of Ms. Roberts' actions are confined to the latter exercise of prosecutorial discretion, and, pursuant to KRS 61.878(1)(h) as recently construed by the courts, we find no error in her refusal to withhold the "intact CD" or her decision to release the redacted CD.
The CD at issue in this appeal is a record compiled in the process of investigating allegations of statutory violations. In the hands of the county attorney, it is part of her criminal litigation file and qualifies for permanent protection from public disclosure under the referenced portion of KRS 61.878(1)(h) even after she decides "to take no action" on those allegations. We therefore find that the Meade County Attorney did not violate the Open Records Act in denying Ms. Matthews' request.
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:
Elaine MatthewsJessica Brown Roberts
Footnotes
Footnotes
1 KRS 61.878(1)(h) authorizes nondisclosure of the disputed record by the County Attorney. Its protection does not extend to other agencies that may possess the same record such as the sheriff's office absent a showing that, "because of the record's content, its release poses a concrete risk of harm to the agency in [a] prospective action." City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2014).
2 We are convinced," the Court reasoned, "that the General Assembly did not intend to mandate an iron rule of nondisclosure whenever an exemption applies." Id. at 68.