Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
William E. Sharp appeals the partial denial of his September 09, 2014 open records request to the Office of the Shelby County Attorney for copies of all email exchanged by the employees of that office and "any other person whose email address contains the domain name identifier: @ice. dhs. gov" between January 1, 2012, and the date of the request. In a timely written response, the Shelby County Attorney refused to disclose any responsive records under authority of KRS 61.878(1)(h). That exception to the Open Records Act authorizes nondisclosure of "records and information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigation or criminal litigation . . . after enforcement action, including litigation, is completed or a decision is made to take no action." Acknowledging that "some responsive records could potentially implicate the asserted statutory exemption, " Mr. Sharp appealed the denial of his request, objecting that the County Attorney "provided no information upon which one could reasonably conclude that all such responsive records (or all of the content within those communications) fall within the cited exemption. " (Emphasis in original.)
Following receipt of notification of Mr. Sharp's open records appeal, the County Attorney amended his response by providing Mr. Sharp with a copy of "an email exchange between an individual named Joseph M. Phelps and Assistant Commonwealth/County Attorney Melanie Carroll." The County Attorney again denied Mr. Sharp access to six other responsive emails under KRS 61.878(1)(h) , explaining that "each communication concerns or relates to specific criminal defendants charged with criminal offenses in Shelby County, Kentucky, who were or are being prosecuted in Shelby District or Shelby Circuit Court." Our review of the emails and the list of criminal cases to which they relate, which we obtained under authority of KRS 61.880(2)(c), confirms the County Attorney's position.
The County Attorney relies on 04-ORD-153 in which this office reaffirmed the longstanding view that, in amending KRS 61.878(1)(h) in 1992 to include the language quoted above, "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." Mr. Sharp acknowledges the potential that some records responsive to his request could implicate the asserted statutory exemption but questions the omission of "information upon which one could reasonably conclude that all such responsive records (or all of the content within the communications) fall within the cited exemption. " While we agree with Mr. Sharp that the County Attorney's original response lacked "a sufficient factual showing . . . to justify the exemption, " 1 this deficiency was corrected on appeal by submission of the records for KRS 61.880(2)(c) 2 inspection and an index of the cases to which each of the records withheld applies." The asserted exemption's protection is therefore "absolute regardless of whether enforcement action is completed or a decision [has been] made to take no action." 02-ORD-112, p. 2 cited in 04-ORD-153, p. 4. In general, the County Attorney can do no more to justify invocation of KRS 61.878(1)(h) without defeating the purpose for which he invoked it. 3
Either party may appeal this decision 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. Return to Text
Footnotes
Footnotes
1 City of Ft. Thomas v. Cincinnati-Enquirer, 406 S.W.3d 842, 852 (Ky. 2013).
2 KRS 61.880(2)(c) states:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed .
(Emphasis added.)
3 Compare KRS 61.878(1)(h) as it relates to records of law enforcement agencies compiled in the process of detecting and investigating statutory violations. KRS 61.878(1)(h) requires these agencies to provide the requester "with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim . . ." City of Ft. Thomas at 852.