Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Scott White, Assistant Deputy Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney for the 52<nd> Judicial District violated the Open Records Act in his handling of Charles Sherrill's September 28, 1998, request for the tape recorded proceedings of grand jury indictment 98-CR-00031. For the reasons that follow, we find that the Commonwealth's Attorney's response, although procedurally deficient, was substantively correct.
As noted, Mr. Sherrill submitted his request to the Commonwealth's Attorney on September 28. Having received no response, he initiated this appeal to the Attorney General on November 16. Shortly thereafter, this office issued notification of receipt of the appeal to Commonwealth's Attorney David Hargrove, advising him at that time that, pursuant to 40 KAR 1:030 Section 2, he could respond to Mr. Sherrill's appeal, but that his response must be received no later than November 30, 1998. The Attorney General received no response to the appeal, written or otherwise.
On December 8, 1998, and with the deadline for issuance of this appeal fast approaching, this office contacted Mr. Hargrove to ascertain the status of Mr. Sherrill's request. Mr. Hargrove advised us that he had not had an opportunity to review the request, but would, that day, issue a response to Mr. Sherrill and send us a copy.
In that December 8 response, Mr. Hargrove advised Mr. Sherrill:
I have received your request, pursuant to open records law, [sic] the tape recording of the Graves County grand jury in Indictment 98-CR-00031. I have been informed that you also requested 93-CR-00052 and 93-CR-00077 but I did not receive a copy of these requests. It is my understanding that you were provided copies of these documents by your attorney, however pursuant to KRS 61.878(1H) [sic], records of the Commonwealth's Attorney are exempt from the open records law. I am enclosing your check.
It is the opinion of this office that Mr. Hargrove failed to comply with the requirements of KRS 61.880(1) in responding to Mr. Sherrill's request, but that his response, once issued, was consistent with the Open Records Act.
The Commonwealth's Attorney violated the Open Records Act in failing to respond to Mr. Sherrill's request in writing, and within three business days. KRS 61.880(1) establishes procedural guidelines for public agency response to an open records request. That statute provides:
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.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed, "The language of the statute directing agency action is exact."
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 858 (1996). It requires a timely, written response containing "particular and detailed information." Id. Although KRS 61.878(1)(h) authorizes the Commonwealth's Attorney to permanently withhold records and information which relate to criminal investigations or criminal litigation, that exemption does not relieve him of his duty under KRS 61.880(1) to respond to the request. We urge the Commonwealth's Attorney to bear these observations in mind in his handling of future open records requests.
We affirm the Commonwealth's Attorney's denial of Mr. Sherrill's request for the tape recorded proceedings of grand jury indictment 98-CR-00031 on the basis of KRS 61.878(1)(h). That statute authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, 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 . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added.)
In 93-ORD-137, this office analyzed KRS 61.878(1)(h). At page 2 of that decision, we observed:
In enacting this provision, the General Assembly clearly intended to afford permanent protection to the records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law.
Thus, "no matter what the stage or status of the proceedings, the 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. " 96-ORD-77, p. 2. See also
Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.