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 Office of the Commonwealth's Attorney for the 26th Judicial District violated the Kentucky Open Records Act in denying the request of Charles E. Hensley, Jr. "to receive a copy of the Grand Jury proceedings in case No. 00-CR-00187 whether such proceedings were mechanically recorded (tape recorded or video-taped) or stenographically recorded (Transcribed)." By letter dated October 9, 2006, Henry S. Johnson, Commonwealth's Attorney, denied Mr. Hensley's request of September 31, 2006. According to Mr. Johnson, RCr 5.16(3), pursuant to which Mr. Hensley submitted his request, "applies to Pre-Trial Discovery, not to Appellant Procedures." In addition, Mr. Johnson noted that items Mr. Hensley requested "were already supplied pursuant to [RCr] 5.16(3) to [Mr. Hensley's] council who represented [him] in the trial of this matter." 1
By letter dated October 18, 2006, Mr. Hensley initiated this appeal from the denial of his request. In his view, RCr 5.16(3), when viewed in conjunction with KRS 61.884, "places an affirmative duty upon the Harlan County Commonwealth['s] Attorney to inform [him] of the cost for procuring a copy of the Grand Jury Tapes/Transcripts." Upon receiving notification of Mr. Hensley's appeal from this office, Mr. Johnson supplemented his original response, arguing that Mr. Hensley's request "is not an Open Records Request" since his letter "nowhere mentions the Open Records Law, and states that it is pursuant to the Criminal Rules of Procedure."
To clarify, the Commonwealth's Attorney was statutorily obligated to issue a written response within three business days regardless of whether Mr. Hensley's request was specifically identified as an Open Records request. In addressing the sufficiency of a request, this office has consistently recognized that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2; 04-ORD-048. When such a request is tendered, the procedural requirements of KRS 61.880(1) are triggered, and a public agency is obligated to respond in a timely and proper fashion.
That being said, Mr. Johnson's denial is not a violation of the Open Records Act; KRS 61.878(1)(h) mandates that "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation," shall remain exempt "after enforcement action, including litigation, is completed or a decision is made to take no action." In our view, 00-ORD-116, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. Because records like those requested are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h), the Office of the Commonwealth's Attorney for the 26th Judicial District cannot be said to have violated the Act in denying Mr. Hensley's request.
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 Although Mr. Johnson is not required to honor duplicative requests, Mr. Hensley would be entitled to receive a copy of the records, even if he could or did obtain the records from another source, if the records did not fall within the parameters of KRS 61.878(1)(h) or another statutory exception. 04-ORD-059, pp. 5- 6, citing 00-ORD-16, p. 4.