24-ORD-108
April 30, 2024
In re: Saeid Shafizadeh/Jefferson County Commonwealth’s Attorney
Summary: The Jefferson County Commonwealth’s Attorney (“the
Commonwealth’s Attorney”) violated the Open Records Act (“the Act”)
when she denied a request for records without explaining how the
claimed exemption applied to the records withheld.
Open Records Decision
Saeid Shafizadeh (“the Appellant”) submitted a request to the Commonwealth’s
Attorney seeking various types of employment records related to a specific person
that were created between 2013 and 2018. Specifically, he sought criminal
background checks, alcohol and drug screenings, disciplinary files, internal affairs
investigatory files, performance reviews, records of trainings and requests for leave,
as well as other types of employment records. In a timely response, the
Commonwealth’s Attorney denied the request, stating it is “the consistent policy” of
her office to deny requests under KRS 61.878(1)(h), which exempts from disclosure
the criminal litigation files of Commonwealth’s and county attorneys. This appeal
followed.
KRS 61.878(1)(h) states “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 [the Act] and shall
remain exempted after enforcement action, including litigation, is completed or a
decision is made to take no action.” However, by its plain language, KRS 61.878(1)(h)
only applies to the criminal litigation files of Commonwealth’s and county attorneys.
The exemption does not apply to every public record in the possession of
Commonwealth’s and county attorneys. See, e.g., 05-ORD-150 n.3 (files associated
with a county attorney involved in litigation to obtain child support arrearages werenot exempt under KRS 61.878(1)(h) if the files did not pertain to a criminal
investigation or prosecution).
Here, although neither the Appellant nor the Commonwealth’s Attorney have
explicitly stated the subject of the request is or was employed by the Commonwealth’s
Attorney, that fact may be inferred from the types of documents that were requested.
For example, employment performance reviews and requests for leave would not
ordinarily be included in a prosecutor’s criminal litigation file, unless such
information was relevant to a particular crime. Moreover, the Commonwealth’s
Attorney has not identified a criminal prosecution to which these records relate.
Rather, she denied the request because it is her “consistent policy” to deny requests
under KRS 61.878(1)(h). Because the Commonwealth’s Attorney has not explained
how the requested records are relevant to any criminal litigation, she has not carried
her burden of showing that the records are exempt. Accordingly, the Commonwealth’s
Attorney violated the Act by denying the Appellant’s request.
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.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
#179
Distributed to:
Saeid Shafizadeh
Gerina D. Whethers
Jason Moore
Phil Bronson