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 Commonwealth's Attorney for the 30th Judicial Circuit properly relied on KRS 61.878(1)(h) in denying Joseph Pappas's November 24, 2010, request for copies of all "documentation pertaining to [his] extradition by [the Commonwealth's Attorney's office] from Albuquerque, New Mexico to the Commonwealth on September 28, 2010" as well as "all detainer documentation from any jurisdiction" and all "court orders authorizing [his] removal and incarceration . . . ." Because "[t]he Commonwealth Attorney does not prosecute an accused on his own behalf, but on behalf of the Commonwealth," he is entitled to invoke KRS 61.878(1)(h) to support nondisclosure of "records or information compiled or maintained [by him or his office] pertaining to criminal investigations or criminal litigation . . . ."
Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992), notwithstanding the fact that he did not prosecute Mr. Pappas or generate the records in dispute. 1
In a response dated December 3, 2010, First Assistant Commonwealth's Attorney Harry J. Rothgerber recited the relevant portion of KRS 61.878(1)(h) and advised Mr. Pappas that his office "regularly declines open records requests for information obtained in our investigations." Characterizing the disputed records as "investigative materials," he denied the request. On appeal, Mr. Pappas challenged the agency's position asserting that the response was untimely 2 and that the "statute quoted was not applicable." In a letter mailed to Mr. Rothgerber on December 8, 2010, Mr. Pappas argued that the disputed records "involve no criminal investigation by [the Commonwealth's Attorney]" or criminal prosecution by that office. Instead, Mr. Pappas noted, he was "prosecuted by the Kentucky Attorney General's Office utilizing their own staff prosecutors. " He did, however, acknowledge that the Commonwealth's Attorney "sen[t] two low level retired ex-detectives to Albuquerque, New Mexico to escort/extradite [him] back to Kentucky." He reaffirmed his position in a letter directed to this office on December 22, 2010. We find his arguments unpersuasive.
KRS 61.878(1)(h) provides, in relevant part:
[R]ecords 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.
In 93-ORD-137 this office undertook an analysis of KRS 61.878(1)(h), noting that in amending the provision in 1992, the General Assembly "clearly intended to afford permanent protection to the records of the [county and] Commonwealth's Attorney which relate to criminal investigations or criminal litigation." 93-ORD-137, p. 2. "In other words," the Attorney General concluded, "these records are forever exempt from public inspection under the Open Records Law." Id., see also 96-ORD-77, p. 2 ("No matter what the stage or status of the proceedings, the [county and] and Commonwealth's Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection" ); Skaggs v. Redford, above at 390. ("[A]s we construe the statute, the [county and] Commonwealth Attorney's records . . . were already exempt under the obvious intention of the statute as it stood prior to amendment [and t]he amendment is nothing more than a clarification of the obvious").
In Skaggs, the Supreme Court went on to recognize that "the exemptions to the Open Records Act should be construed in a manner sufficiently broad to protect a legitimate state interest, " and that "[t]he Office of the Commonwealth Attorney and the Office of the Attorney General, together, represent the state's prosecutorial function in [a criminal] case." Id. The Court reasoned:
The Commonwealth Attorney does not prosecute an accused on his own behalf, but on behalf of the Commonwealth. Whether the Office of the Attorney General or the Commonwealth Attorney is representing the Commonwealth, it is the state's interest that they represent, and it is the state's interests that are being protected by KRS 61.878(1)(h).
Id. Binding precedent thus establishes that records or information compiled and maintained by the Commonwealth's Attorney pertaining to criminal investigation or criminal litigation are permanently shielded from disclosure regardless of who generates the records or who prosecutes the case. 3
Contrary to Mr. Pappas's apparent belief, the records in dispute are criminal investigation and criminal litigation records. But for his commission of crimes and subsequent prosecution in Jefferson County, the Commonwealth's Attorney could have neither compiled nor maintained these records in the discharge of his duties. Here, as in Skaggs, we believe that the relevant language in KRS 61.878(1)(h) "should be construed in a manner sufficiently broad to protect a legitimate state interest, " 4 and that our interpretation is not, in this case, "unduly harsh" since the records are available under the Open Records Act from other public agencies. 5 Skaggs at 390. We find no error in the Commonwealth's Attorney's disposition of Mr. Pappas'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 KRS 61.878(1)(h) authorizes nondisclosure of the disputed records by the Commonwealth's Attorney. Its protection does not extend to other agencies that may possess the same records such as the Office of the Governor or the Office of the Attorney General.
2 Given intervening holidays and allowing for delays in the mail, the record on appeal does not support this allegation.
3 KRS 15.190 states that a Commonwealth's Attorney "may request in writing the assistance of the Attorney General in the conduct of any criminal investigation or proceeding." See also, KRS 15.715. Pursuant to this statute, the Attorney General's Division of Special Prosecutions regularly prosecutes criminal cases in complex or sensitive cases or cases in which the local prosecutor disqualifies himself. We have confirmed that the Division of Special Prosecutions did, in fact, prosecute Mr. Pappas's case.
4 One such interest is the state's interest in preempting harassing open records requests for prosecutorial files by convicted criminals when the same records were available through discovery during the prosecution of the action. Accord, Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, (Ky. 2005) reaffirming the application of the principles enunciated in Skaggs to "all records in the litigation files of the Commonwealth's Attorney, regardless of origin." The Court opined:
A criminal defendant has ample opportunity to examine the Commonwealth's litigation files before trial. RCr 7.24(2). Appellant[, a convicted criminal,] cannot use the provisions of the Open Records Act to subvert the rules of discovery [given the express language of KRS 61.878(1)(h)]].
Bowling at 339.
5 See note 1, above.