23-ORD-187
July 26, 2023
In re: Kevin Franklin/Louisville-Jefferson County
Public Defender Corporation
Summary:
The
Louisville-Jefferson
County
Public
Defender
Corporation (“the Public Defender”) violated the Open Records Act (“the
Act”) when it did not respond to a request to inspect records. The Public
Defender did not violate the Act when it did not produce records exempt
under KRS 61.878(1)(p).
Open Records Decision
On June 3, 2023, inmate Kevin Franklin, Jr (“Appellant”) submitted a request
to the Public Defender for his file, his counsel’s work-product, and video of his trial.
In response, on June 7, 2023, the Public Defender stated it was “in the process of
determining whether [it] possess[es] any of the materials that [the Appellant]
requested.” After receiving no further response from the Public Defender by June 22,
2023, the Appellant initiated this appeal.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny it and explain why.
KRS 61.880(1). Or, if responsive records are “in active use, in storage or not otherwise
available,” a public agency may delay access to them by stating the earliest date on
which they will be available and a detailed explanation of the cause of the delay.
KRS 61.872(5). Here, although the Public Defender responded to the request, it
neither granted nor denied the request within five business days. Instead, it stated it
would determine if it possessed any of the records the Appellant requested but did
not specify the earliest date on which the records would be available, give a detailedexplanation for the cause of the delay, or otherwise respond to the Appellant until
after this appeal was initiated. Accordingly, the Public Defender’s response did not
comply with KRS 61.872(5), and it therefore violated the Act.
On appeal, the Public Defender states that “the records and materials sought
by [the Appellant] are part of the ‘client and case files’” they maintain and are
therefore exempt under KRS 61.878(1)(p). That section exempts from disclosure
“[c]lient and case files maintained by the Department of Public Advocacy or any
person or entity contracting with the Department of Public Advocacy for the provision
of legal representation under KRS Chapter 31.” KRS 61.878(1)(p). The Public
Defender claims it contracts with the Department of Public Advocacy for the provision
of legal representation under KRS Chapter 31 and that the records requested by the
Appellant are part of its “clients and case files” exempted by the Act. The Office
agrees.1 Accordingly, the Public Defender did not violate the Act when it did not
produce records exempt under KRS 61.878(1)(p).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
1
Although the Act exempts from the Appellant’s inspection his own case file, there are other
authorities that control a client’s right of access to his own case file from his attorney. See, e.g.,
SCR 3.130(1.16(d)). However, the Office’s authority is to determine whether an agency has complied
with the Act, KRS 61.880(2), not whether it complied with other statutes or rules, see, e.g., 22-ORD-
235 n.3.#276
Distributed to:
Kevin Franklin, Jr. #284502
Elizabeth B. McMahon
Leo G. Smith