Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Commonwealth's Attorney, 30th Judicial Circuit, violated the Kentucky Open Records Act in declining to disclose records of criminal investigations. We find that the Commonwealth's Attorney properly relied upon KRS 61.878(1)(h) in withholding the requested records.
By letter dated October 7, 2016, Michael T. Burns, with Sam Aguiar Injury Lawyers, requested video and body cam footage related to a criminal defendant's prior charges in four cases. In denying Mr. Burns' request, the Commonwealth's Attorney relied upon KRS 61.878(1)(h). We cite to a prior decision of this office, 16-ORD-037, to explain the basis of the Commonwealth's Attorney's denial:
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).
16-ORD-037, pp. 2-3.
On appeal, the Commonwealth's Attorney further explained that the files requested by Mr. Burns had been retrieved from archives and reviewed on October 26, 2016. That review determined that the files do not contain records responsive to Mr. Burns' request. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Commonwealth's Attorney did not violate the Open Records Act in its disposition Mr. Burns' request.
A party aggrieved by this decision may appeal it 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.