Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Boone County Commonwealth's Attorney violated the Kentucky Open Records Act in denying the request of William S. R. Moore, Jr. for a copy of "Audio tape # 2-on/about 4-14-2001." Although the Boone County Commonwealth's Attorney violated KRS 61.880(1) in failing to respond within three business days, 1 the Commonwealth's Attorney belatedly sustained her burden of proof in denying Mr. Moore's request. 2 As correctly observed by Brooke E. Hiltz, Assistant Commonwealth's Attorney: "KRS 61.878(1)(h) authorizes nondisclosure of 'records or information compiled or maintained by . . . Commonwealth's attorneys pertaining to criminal investigations or criminal litigation.'" Accordingly, the Office of the Commonwealth's Attorney declined to provide Mr. Moore with a copy of the specified audiotape in its file.
Upon receiving notification of Mr. Moore's appeal, Ms. Hiltz elaborated on the position of the Commonwealth's Attorney as follows:
KRS 61.878(1)(h) authorizes nondisclosure of [the requested records]. Furthermore, this information remains exempted even after "enforcement action, including litigation, is completed or a decision is made to take no action." As such, this office contends that it is not required to provide Mr. Moore with the tapes/transcripts he is requesting.
We agree. It is the decision of this office that 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is dispositive of the question presented. Because the record requested is exempted from the Open Records Act by KRS 61.878(1)(h), the Boone County Commonwealth's Attorney properly denied Mr. Moore's request on this basis.
A party aggrieved by this decision may appeal it by initiating an 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.
William S. R. Moore, Jr. # 155987Eastern Kentucky Correctional ComplexEK, Dorm 2200 Road to JusticeWest Liberty, KY 41472
Brooke E. HiltzAssistant Commonwealth's Attorney54th Judicial District2252 Burlington PikeP.O. Box 168Burlington, KY 41472
Footnotes
Footnotes
1 In relevant part, KRS 61.880(1) 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.
2 In a letter dated October 27, 2004, Brooke E. Hiltz, Assistant Commonwealth's Attorney, responded to Mr. Moore's request dated October 19, 2004, on behalf of the Commonwealth's Attorney, acknowledging receipt of his request on October 21, 2004.