Request By:
Barrett Dennison
John B. Gardner
Opinion
Opinion By: Andy Beshear,Attorney General; Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney for the 43rd Judicial Circuit violated the Kentucky Open Records Act in denying Barrett Dennison's February 22, 2017, request for "any and all documents, discovery, video and other media files involved in the Anthony Barbour Trial that took place inside the Barren County Courthouse between December 6 [and] December 5, 2017 [sic]," as well as "jail phone calls or video interviews with Kentucky State Police ["KSP"] that may be included in the case file related to Mr. Barbour." 1 In a timely written response, Commonwealth's Attorney John B. Gardner acknowledged receipt of Mr. Dennison's request but declined to provide any responsive documents because "the documents requested are exempted from an open records request by KRS 61.878(1)(h)."
Upon receiving notification of Mr. Dennison's March 1, 2017, appeal, the Commonwealth's Attorney outlined the written and verbal communications between the parties, noting that Mr. Dennison was "specifically interested in jail calls and any recorded statements that the Defendant made." The Commonwealth's Attorney confirmed that "any recorded jail calls made by Anthony Barbour or recorded video interviews of Anthony Barbour by the [KSP] in my possession, were compiled by my office in relation to the criminal litigation referenced above." Even though the litigation is concluded, the Commonwealth's Attorney continued, "the statute states that the exemption remains. KRS 61.878(1)(h) provides blanket protection to my prosecutorial files, and this protection has been recognized by the courts. [Lawson v. Office of Attorney General, 415 S.W.3d 59, 66 (Ky. 2013)." The clear and unambiguous language of KRS 61.878(1)(h) as well as existing legal authorities validate the position of the Commonwealth's Attorney.
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 . . .").
The Kentucky Supreme Court has affirmed 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). See 14-ORD-069. 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 Office of the Commonwealth's Attorney is not exempt from provisions of the Open Records Act, such as KRS 61.880(1) , requiring that a public agency issue a written response within three business days of receiving a request, just as the Commonwealth's Attorney did in this case. However, KRS 61.878(1)(h) authorizes county and Commonwealth's Attorneys to permanently withhold information and records they compile and maintain pertaining to criminal investigations or litigation. The records in dispute were compiled by the Commonwealth's Attorney and those records pertain to a criminal investigation or litigation; accordingly, KRS 61.878(1)(h) affords the records protection from disclosure in perpetuity. The Office of the Commonwealth's Attorney for the 43rd Judicial Circuit did not violate the Open Records Act in denying Mr. Dennison's 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 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.
Footnotes
Footnotes
1 Although Mr. Dennison observed that his request "falls under The Freedom [o]f Information Act," in 04-ORD-090, the Attorney General recognized:
In Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. . . . [T]herefore, public agencies in Kentucky . . . are not governed by the "federal standard[.]"
Id., p. 5.