Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Office of the Commonwealth's Attorney for the 6th Judicial Circuit relative to the open records request of Tony Reynolds for "copies of all exhibits that are gone from the record in the Allen Circuit Court. The[y] are listed on a sheet I'm sending you along with this Ch 61 where they went and who ordered. Also a copy of the 36 page summary that's listed on the Discovery No # 13."
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," Jay A. Wethington, Commonwealth's Attorney for the 6th Judicial Circuit, provided this office with a response to the issues raised in the appeal. In his response, Mr. Wethington advised, in part:
Considering the matter on appeal by Tony Reynolds, specifically, all of the exhibits are of record in the Allen Circuit Court Clerk's office and thereafter, to the Court of Appeals. They are not in the possession of this office.
The 36 page summary unknown to be in existence by myself as I was not the prosecutor for that case. That was done by my predecessor, the Honorable Thomas O. Castlen. I have looked through his files and I can find no such document.
We are asked to determine whether the actions of the Office of the Commonwealth's Attorney for the 6th Judicial Circuit violated the Open Records Act. For the reasons that follow, we conclude that, with the possible exception of a procedural violation, the actions were consistent with and did not constitute a violation of the Act.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. In his response to this office, Mr. Wethington advised that his office did not have in its possession either the requested exhibits or the 36 page summary. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Assuming for the sake of argument that the requested records were in the possession of the Commonwealth's Attorney, he would be entitled to withhold them under authority of KRS 61.878(1)(h). That statute 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, "[n]o 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 Office of the Commonwealth's Attorney.
The record before us does not indicate whether the agency filed a timely response to Mr. Reynold's request. If the agency failed to file a response within three business days after its receipt of the request, as required by KRS 61.880(1), its actions was procedurally deficient. However, as set forth above, we find that the substantive response of the Office of the Commonwealth's Attorney did not constitute a violation of the Open Records Act.
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.
Tony ReynoldsGreen River Correctional ComplexP.O. Box 9300Central City KY 42330
James A. Wethington Commonwealth's Attorney for the 6th Judicial Circuit100 East Second StreetP.O. Box 767Owensboro KY 42302