Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Doy S. Beasley initiated this appeal challenging the inaction of the Commonwealth's Attorney for the 38th Judicial Circuit upon receipt of his January 10, 2016, request for "all letter[s] you have received from Doy S. Beasley." Upon receiving notification of Mr. Beasley's February 8, 2016, appeal from this office, the Commonwealth's Attorney advised that his office has received a total of four (4) letters from Mr. Beasley, "including the letter dated January 10, 2016 which contains an open records request on page 2 which we inadvertently overlooked upon initial reading of the letter." The Commonwealth's Attorney failed to comply with KRS 61.880(1) by not issuing a written response within three business days of receiving Mr. Beasley's request. See 08-ORD-016; 13-ORD-088. On appeal, however, the Commonwealth's Attorney further advised that all of the responsive letters "relate to a potential criminal prosecution." Accordingly, the Commonwealth's Attorney invoked KRS 61.878(1)(h) as the basis for denying Mr. Beasley's request.
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; 14-ORD-069.
The Kentucky Supreme Court has 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 by the Commonwealth's Attorney and those records pertain to a criminal investigation or litigation. 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 in ultimately denying the request on the basis of KRS 61.878(1)(h).
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.