Request By:
Joseph Mark Bourne, # 186154
Susanne McCollough
Mary Ann Palmer
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy violated the Open Records Act in the disposition of Joseph Mark Bourne's June 17, and 18, 2008, requests for two copies of "the 'complete' all 'grand jury testimonies' transcripts in [his] case # 04-CR-00053, and also [one] copy of the 'police search warrant. '" 1 For the reasons that follow, we find that DPA did not violate the provisions of the Act.
In a response dated June 26, 2008, Assistant Public Advocate Susanne McCollough provided Mr. Bourne with "a copy of the cover letter where [she] previously complied with [his] request for a copy of the affidavit AND the search warrant twice" along with a third and final copy of the search warrant. Ms. McCollough advised Mr. Bourne that his file contained no transcript of the grand jury testimony in his case. On September 17, 2008, Mr. Bourne initiated this appeal, requesting that this office "conduct a[] investigation or obtain these . . . 'grand jury transcripts' on [his] behalf."
In supplemental correspondence, DPA General Counsel Mary Ann Palmer explained:
Grand jury proceedings are taped, not transcribed. The Department is not the custodian of grand jury records under KRS 61.870(6). Counsel requested that the trial office check their records for grand jury tapes. None were found. Therefore, if such transcripts or tapes exist, then Mr. Bourne should be continuing his quest for this information with the court clerk's office or the local Commonwealth's Attorney's Office.
In closing, Ms. Palmer emphasized that DPA "cannot disclose information or documents that it does not possess." 2 We agree.
The Kentucky Open Records Act governs access to existing public records. KRS 61.872(2) thus provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
KRS 61.870(2) defines the term "public record" as:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority;
The "right to inspect public record" attaches only after those records have been "prepared, owned, used, possessed, or retained" by a public agency. No such right attaches to records that do not exist. Accord, 97-ORD-18, p. 2. DPA has explained to Mr. Bourne that the grand jury proceedings were taped, not transcribed, and that neither his trial attorney nor his appellate attorney have a copy of the grand jury transcripts, much less the tapes. DPA therefore properly advised him, pursuant to KRS 61.872(4), 3 to pursue his search through the Office of the Commonwealth's Attorney. 4 This office is not empowered to conduct an investigation into the whereabouts of the grand jury tapes to which Mr. Bourne requests access, but we encourage him to follow DPA's sound advice in his effort to locate those records.
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. Bourne's requests were identical as to content. He did, however, stipulate that he did "not want the affidavit for search warrant" in his June 17 request.
2 Ms. Palmer also addressed Mr. Bourne's request for a copy of a picture of Brittany Spears which may have been confiscated from his cell while he was confined in the Boyle County Jail. Assuming Mr. Bourne made a request for the photograph from DPA, that request was not submitted to this office as a part of his appeal pursuant to KRS 61.880(2)(a), and we are therefore foreclosed from adjudicating the issue by operation of 40 KAR 1:030 Section 1.
3 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
4 RCr 5.16 establishes the duties of the Commonwealth's Attorney in relation to recordation, retention, and release of grand jury testimony.