Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney for the 26th Judicial District of Kentucky violated the Open Records Act in the disposition of Charles E. Hensley's May 12, 2004 request for a copy of "any taped confession made by Cletus Robbins, confessing to the murder of one Rocky Haywood turned over by the D.E.A." For the reasons that follow, we find that the Commonwealth's Attorney's response was procedurally deficient, but that he belatedly went above and beyond his statutory duty in providing Mr. Hensley with a responsive record that was not in his custody at the time of Mr. Hensley's request.
On May 23, 2004, Mr. Hensley initiated this appeal, having apparently received no written response to his May 12 request from the Commonwealth's Attorney. Shortly thereafter, this office issued notification of the receipt of Mr. Hensley's appeal to the Commonwealth's Attorney. By letter dated June 7, 2004, a copy of which was mailed to this office, the Commonwealth's Attorney advised Mr. Hensley:
When I first got your request for the tape I did not have it in my possession. I made inquiries through the Kentucky State Police, but they also did not have it. They in turn notified the proper Federal authorities, but they did not have a tape fitting your description.
However, the Federal authorities did send me a copy of the next closest thing they had, so I am sending you that. I tried to listen to the tape myself but it is hard to make out. I am familiar with Cletus Robbins voice, and it does not appear to be on there. Nevertheless, I am forwarding you the tape they sent me.
It is the decision of this office that this response, although deficient to the extent it was not issued in a timely fashion, was otherwise consistent with the requirements of the Open Records Act, and that in fact the Commonwealth's Attorney went beyond his statutory duty in locating a responsive record that was not already in his custody and providing Mr. Hensley with a copy.
In 1992, the Kentucky Open Records Act was amended to include the following permanent exception to the general rule of mandatory disclosure of public records:
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.
KRS 61.878(1)(h) (emphasis added). In enacting KRS 61.878(1)(h) the General Assembly clearly intended to afford permanent protection to records of the Commonwealth's Attorney which relate to criminal investigations or criminal litigation. See
Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993) and 93-ORD-137. Accordingly, we find that the Commonwealth's Attorney for the 26th Judicial District was under no obligation to honor Mr. Hensley's request. Nevertheless, the Commonwealth's Attorney took extraordinary steps in order to locate, and provide Mr. Hensley with a copy of, a responsive record and we commend him for his efforts.
Having said this, however, we remind the Commonwealth's Attorney that KRS 61.878(1)(h) does not relieve him of his procedural obligations under KRS 61.880(1). 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 order to fully discharge his obligations under the Open Records Act, the Commonwealth's Attorney must respond to a records request in writing and within three business days, and advise the requester that the records he is seeking are excluded from inspection by operation of KRS 61.878(1)(h), or, in this case, that although he has no responsive records in his custody, he is attempting to locate and provide such records. To the extent that the Commonwealth's Attorney failed to do either of these things, his actions constituted a violation of KRS 61.880(1).
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.
Charles E. Hensley, # 163297Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Henry JohnsonCommonwealth's Attorney115 S. Cumberland Avenue, Suite 401P. O. Box 1679Harlan, KY 40831