Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented is whether the Commonwealth's Attorney for the Eighth Judicial Circuit violated the Open Records Act in failing to issue a timely written response upon receipt of Donald Violett's July 13, 2014, request for three categories of records pertaining to Warren Circuit Court Indictment No. 92-CR-532, the last of which identified twenty-one (21) subcategories labeled A. -- U, including, but not limited to, recorded statements, affidavits, DNA test results, etc. Having received no response, Mr. Violett initiated this appeal by letter dated August 1, 2014. Mr. Violett argued that KRS 422.285 "controls the asking and getting evidence that I have requested."
The Commonwealth's Attorney violated KRS 61.880(1) in failing to issue a written response within three business days of receiving Mr. Violett's request, including a statement of the statutory exception authorizing the withholding of the records and a brief explanation of how the exception applies. See 08-ORD-016; 13-ORD-088. On August 5, 2014, this office issued a notification of Mr. Violett's appeal, noting that any response was due by August 11, 2014. By letter dated August 22, 2014, the Commonwealth's Attorney observed that "[t]he Open Records Act does not require an agency to gather and supply information independent of that which is set forth in public records. See 05-ORD-230." He indicated that Mr. Violett's request was denied "to the extent that it implicates the aforementioned decision[]." Although the agency did not provide a copy of the written response to which it referred, it also invoked KRS 61.878(1)(h) in responding to Mr. Violett's appeal, which is controlling on the question presented. In light of this determination, further discussion of the agency's other argument is unnecessary.
In relevant part, KRS 61.878(1)(h) provides that "records 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." This office has consistently recognized that in amending KRS 61.878(1)(h) 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 . . ."); 14-ORD-069.
In two recent opinions, the Kentucky Supreme Court reaffirmed this position. Contrasting the criminal litigation files of county and Commonwealth's attorneys with 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 Court emphasized 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) . 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 . . . ."
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 66 (Ky. 2013). The Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ." Id. at 69. Nevertheless, the Court observed, 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."
The records in dispute were compiled in the process of investigating allegations of statutory violations. Inasmuch as those records are located in the Commonwealth's Attorney's criminal litigation file, KRS 61.878(1)(h) affords the records protection from disclosure in perpetuity. Accordingly, the Commonwealth's Attorney did not violate the Open Records Act with the exception of the noted procedural violation. Either party may appeal this decision by initiating action in the appropriate circuit court under 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:
Donald ViolettChristopher T. Cohron