Request By:
Christopher Peyton # 283628
D. Brandon Ison, Esq.
Pammy Whitt
Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Morgan County Commonwealth's Attorney D. Brandon Ison ("Commonwealth's Attorney") violated the Open Records Act in denying three requests for copies of grand jury recordings submitted by Christopher Peyton ("Appellant"). For the foregoing reasons, we find that the Commonwealth's Attorney properly invoked the permanent records exemption stated in KRS 61.878(1)(h) to justify denying Appellant's requests. However, the Commonwealth's Attorney violated KRS 61.880(1) 1 by failing to issue written responses to those requests.
On October 5, 2018, Appellant submitted an appeal with this office stating that he had not received any responses to his three requests of May 2, August 30 and September 18, 2018. Appellant filed his first request seeking grand jury recordings relating to his criminal case on May 2, 2018. Having received no response to the first request, Appellant filed two more requests on August 30, 2018 and September 18, 2018.
On October 16, 2018, the Commonwealth's Attorney responded to the appeal, citing KRS 61.878(1)(h) and stating, "all records or information pertaining to criminal investigations or criminal litigation which are compiled and maintained by Commonwealth's Attorneys are exempted from the [Act]." He stated, "any records which are in the Morgan County Commonwealth's Attorney's possession are forever exempted. " The Commonwealth's Attorney did not address the absence of responses to Appellant's three requests.
The Commonwealth's Attorney properly invoked the exemption of KRS 61.878(1)(h). 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."
Applying this precedent, this office has found that 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. 17-ORD-061, p. 2; 16-ORD-253; 14-ORD-211. The grand jury records at issue in this case were compiled by the Commonwealth's Attorney and pertain to a criminal investigation and litigation. The Commonwealth's Attorney correctly stated that KRS 61.878(1)(h) affords the records permanent protection from disclosure.
However, the Commonwealth's Attorney violated the Act when he failed to issue a written response to Appellant's requests. KRS 61.880(1) states, in relevant part, that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." Although KRS 61.878(1)(h) applies an exemption to criminal investigation and criminal litigation records, a Commonwealth's Attorney is not exempt from the provisions of the Open Records Act, such as KRS 61.880(1). See 06-ORD-146; 08-ORD-016; 13-ORD-198. The Commonwealth's Attorney did not issue a written response to either Appellant's three requests until after receiving notice of the appeal. That disposition does not meet the requirements of KRS 61.880(1). As such, we find that the Commonwealth's Attorney committed a procedural violation of the Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(1) states: "If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."