Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney for Boone and Gallatin Counties, Linda Tally Smith, violated the Open Records Act in the disposition of The Cincinnati Enquirer's request for "any public record held by the Commonwealth's Attorney of Boone County that includes any information about a panel of veteran law enforcement officers overseeing the death investigation of Samantha Ramsey." For the reasons that follow, we find no violation of the Act.
On April 26, 2014, an altercation occurred between Samantha Ramsey and Boone County Sheriff's Deputy Tyler Brockman, which resulted in physical injury to Deputy Brockman and the fatal shooting of Ms. Ramsey. The Boone County Sheriff subsequently asked the Commonwealth's Attorney for assistance with the investigation of the incident. In early May 2014, officers from three local law enforcement agencies volunteered to serve on an independent panel to review the evidence and investigative reports for grand jury purposes, with Ms. Smith serving "in an advisory capacity to ensure that all possible questions of the Special Prosecutor or the Boone County Grand Jury can be fully answered through the investigation." 1
The Enquirer's request for records about the panel was made by reporter Carrie Blackmore Smith on July 16, 2014. Ms. Smith replied on July 18, 2014, invoking KRS 61.878(1)(h), which provides in part 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." She accordingly denied the request.
On July 22, 2014, the Enquirer's attorney, Lynda Hils Mathews, asked Ms. Smith to reconsider her denial, contending that the Enquirer was only seeking "the records showing where the Commonwealth Attorney's office has taken the final action of appointing a panel of investigators into the Ramsey matter and the identity of those panel members," not requesting copies of the evidentiary materials. Ms. Smith reiterated her denial on July 25, 2014, stating that the only responsive public records were the "records or information compiled and maintained" by her office pertaining to the criminal investigation. This appeal followed on August 4, 2014.
It is well established that Commonwealth's Attorneys are not obligated to disclose their records pertaining to criminal investigations or criminal litigation. 14-ORD-069; 12-ORD-066. While an investigative record in the hands of a police agency may be open to the public, "the same record in the hands of the county or Commonwealth's Attorney charged with prosecuting the criminal conduct alleged is permanently shielded from disclosure by KRS 61.878(1)(h)." 02-ORD-112. This distinction was recently reaffirmed by the
Supreme Court of Kentucky in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013) (no showing of harm required for prosecutor to withhold criminal records), and in
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 69 (Ky. 2013) ("the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure" ).
It makes no difference that a special prosecutor has been appointed for the criminal matter. See 11-ORD-005 ("records or information compiled and maintained by the Commonwealth's Attorney pertaining to criminal investigation or criminal litigation are permanently shielded from disclosure regardless of who generates the records or who prosecutes the case"). Nor does it make a difference that the requested records do not constitute evidence in the case, so long as they pertain to the criminal investigation. Information about the law enforcement personnel conducting the joint investigation is indisputably information pertaining to that investigation. The deciding factor is that the records have been requested from the Commonwealth's Attorney.
Since the records concerning the investigative panel are compiled and maintained by the Commonwealth's Attorney and pertain to a criminal investigation and potential criminal litigation, the Commonwealth's Attorney was authorized to deny the request under KRS 61.878(1)(h). We therefore find no violation of the Open Records Act.
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 proceedings.
Footnotes
Footnotes
1 Joint Press Release by Commonwealth's Attorney Linda Tally Smith, Special Prosecutor James M. Crawford, and Sheriff Michael A. Helmig (July 27, 2014).