Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Doug Goodman appeals the Hardin County Judge/Executive's denial of his May 14, 2014, request for a copy of investigation documents pertaining to the resignation of Emergency Medical Services employees Ira Dyer and Jamie Miller. Responding for the County Judge, the Hardin County Attorney notified Mr. Goodman that "KRS 61.878(1)(h) exempts from inspection records or information compiled and maintained by county attorneys pertaining to a criminal investigation. " In his letter of appeal, Mr. Goodman explains that Mr. Dyer and Mr. Miller resigned their positions but that he was given no information "concerning the outcome of the internal investigation . . . ." 1
The Hardin County Attorney responds that her office conducted an investigation following receipt of a verbal complaint and two written reports concerning Mr. Dyer and Mr. Miller. With regard to these and all other investigative records, she maintains that KRS 61.878(1)(h) extends permanent protection to records and information compiled by county attorneys pertaining to criminal investigation "regardless of when and if criminal charges are filed."
In response to questions posed by this office under KRS 61.880(2)(c), the Hardin County Attorney acknowledged that the investigative summary and interviews were reviewed by the Judge/Executive but that he did not retain copies. No explanation was provided to explain why the Judge/Executive withheld responsive records. Additionally, she provided us with a copy of the investigative records for in camera inspection.
Mr. Goodman addressed his request to the Hardin County Judge/Executive. The County Judge is a public agency under KRS 61.870(1)(a) who, we have learned, "used" and at least temporarily "possessed" the investigative summary and interviews. KRS 61.870(2) defines "public record" as documentation, regardless of physical characteristics, that is "prepared, owned, used, in the possession of or retained by a public agency. " The fact that the County Judge did not retain a copy does not alter our analysis since KRS 61.870(2) employs the term "or," rather than "and," and "or" is ordinarily interpreted as meaning "an alternative." 07-ORD-241, note 4 (recognizing that KRS 61.870(2) does not require the agency to "both prepare and possess the requested employee disciplinary records" and emphasizing the use of "or" rather than "and" in the statute). KRS 61.878(1)(h) does not provide permanent protection for records or information used and at least temporarily possessed by the County Judge/Executive.
Under KRS 61.880(2)(c), "the agency bears the burden of proof, and what it must prove is that any decision to withhold responsive records was justified under the Act."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 843, 848 (Ky. 2013). The Hardin County Judge/Executive did not provide any reason for withholding responsive records. Accordingly, he necessarily fails to satisfy his burden of proving that his decision to withhold the investigative summary and interviews was justified under the Open Records Act.
Either party may appeal this decision by initiating action in the appropriate circuit court, under KRS 61.880(5) and KRS 61.882. Under 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:
Douglas GoodmanHarry L. BerryJennifer B. Oldham
Footnotes
Footnotes
1 Mr. Goodman is a Hardin County Fiscal Court magistrate. This fact is relevant to an analysis under KRS 61.878(5) which promotes agency sharing of statutorily protected information "when the exchange is serving a legitimate government need or is necessary in the performance of a legitimate government function." The County Judge does not meet his burden of proving that the investigative summary and interviews are not statutorily protected.