Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
John Lewis-El initiated this appeal challenging the May 22, 2014, denial by the Office of the Commonwealth's Attorney for the Second Judicial Circuit of his May 19, 2014, request for "the name of the person appointed to be the stenographer/transcriber of the Grand Jury session in which my indictment was issued." Assistant Commonwealth's Attorney Seth A. Hancock advised Mr. Lewis-El that his request was denied "because the Commonwealth's Attorney's office is exempt from open records requests pursuant to KRS 61.878[(1)](h)." The Office of the Commonwealth's Attorney is not exempt from the Open Records Act. See 06-ORD-146; 13-ORD-198. However, KRS 61.878(1)(h) does authorize the withholding of "records or information compiled and maintained by county or Commonwealth's Attorneys pertaining to criminal investigations or criminal litigation." 1
Such information and 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). 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, p. 2. Accordingly, this office has consistently recognized 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; 11-ORD-005; 14-ORD-027. In a recent Kentucky Supreme Court opinion, the Court confirmed this interpretation, holding that under 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). See also Lawson v. Office of the Attorney General, 415 S.W.3d 59, 69 (Ky. 2013)(holding that "statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ." but KRS 61.878(1)(h) does not preclude county or Commonwealth's attorneys from allowing disclosure, "assuming, of course, that no other exemption applies")
The Commonwealth's Attorney is not exempt from provisions of the Open Records Act, such as KRS 61.880(1), requiring that a public agency issue a written response within three business days of receiving a request as the Office of the Commonwealth's Attorney did in this case. However, KRS 61.878(1)(h) authorizes county and Commonwealth's Attorneys to permanently withhold information and records they compile and maintain pertaining to criminal investigations or litigation. Because Mr. Lewis-El requested such information, the Office of the Commonwealth's Attorney for the Second Judicial Circuit did not violate the Open Records Act in denying his request on the basis of 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:
John Lewis-El, # 186430Seth A. Hancock
Footnotes
Footnotes