Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fayette Commonwealth's Attorney properly denied George Quinn Barber's April 7, 2000, request for a copy of "the transcript of testimony of the Grand Jury Hearings regarding Indictments 98-CR-40 and 98-CR-0161 and a copy of each indictment. " For the reasons that follow, we affirm the Commonwealth's Attorney's denial of Mr. Barber's request.
In a response dated May 1, 2000, First Assistant Fayette Commonwealth's Attorney Patrick Michael Malone denied Mr. Barber's request. 1 Mr. Malone argued, inter alia , that KRS 61.878(1)(h) supports nondisclosure of the grand jury transcript. It was his position that because grand jury records "are maintained by the Commonwealth's Attorney . . . they are . . . exempted from public release by statute." We agree with Mr. Malone's analysis.
KRS 61.878(1)(h) authorizes 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 examined 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). Our analysis in this open records appeal is confined to KRS 61.878(1)(h), and its application to the requested record of the Commonwealth's Attorney.
As Mr. Malone correctly notes, RCr 5.16 establishes the duties of the Commonwealth's Attorney relative to recordation, retention, and release of grand jury testimony. The Attorney General cannot define the scope of these duties in a legally binding open records decision, nor is he empowered to enforce the Rules of Criminal Procedure. Rather, it is for the courts to make this determination, and to afford relief to the "person indicated" where appropriate.
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.
Footnotes
Footnotes
1 Mr. Malone questions whether Mr. Barber's April 7, 2000, request ever reached the Commonwealth's Attorney's office. He acknowledges receipt of an earlier request for the transcript that was not framed as an open records request, but cannot confirm that the subsequent request was received. Mr. Barber maintains that it was, noting that he has in his possession a signed return receipt, but fails to produce a copy of that receipt. We cannot resolve this factual dispute on the record before us, and therefore decline to render a decision on any purported procedural irregularities.