Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the McCracken County Jailer did not meet his statutorily assigned burden of proof in denying Gerald Morris' request for "the chain of custody form used to test the substance inmate Gerald Morris scooped up out of the toilet and threw on Sergeant Ron Sigers and Deputy Carol Schuck on February 11, 2008, in H-130 at the McCracken County Jail." Although the Jailer, through the Office of the McCracken County Attorney, invoked KRS 61.878(1)(h) and KRS 61.878(1)(l), incorporating KRS 17.150, in support of the denial of Mr. Morris' request, he did not "describe the harm that would result from premature release of the record," 1 other than to state that the record "is the subject of an ongoing criminal prosecution pending in McCracken Circuit Court." We find that 08-ORD-174, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. Because the Jailer did not "justify the refusal of inspection with specificity," as required by KRS 17.150(3), or describe, in at least general terms, the harm to the prosecution that would result from premature disclosure of the requested chain of custody form, as required by KRS 61.878(1)(h), we find that he did not meet his "burden of proof in sustaining the action" as required by KRS 61.880(2)(c). Bearing in mind that both KRS 61.878(1)(h) and KRS 17.150(3) expressly provide that these exemptions "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 or KRS 17.150(3) , respectively, we find insufficient proof in the record on appeal to affirm the McCracken County Jailer's denial of Mr. Morris' 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 08-ORD-174, p. 3.