Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Tom Fox appeals the Office of the Commonwealth's Attorney's denial of his January 27, 2016, request for "the court's 9/22/14 Order Granting Pretrial Diversion in [Case No. 14-CR-2251]...as it has been retained in [his] office's case file." Noting that the defendant "publicly maintained his innocence of the crime for which he was convicted" and that the court's file copy of the order "may have been modified after the court approved the plea offer," Mr. Fox indicated that the purpose of his request is to compare the Commonwealth's Attorney's file copy of the order with the copy of the order he obtained from the court. Regardless of Mr. Fox's purpose, KRS 61.878(1)(h) authorizes nondisclosure of the Commonwealth's Attorney's file copy of the order. It contains no exception for copies of the same record that were obtained elsewhere or that "may have been modified. .. ."
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records 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 . The exemptions provided by this subsection 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;
[Emphasis added.] In 13-ORD-198, the Attorney General analyzed this statute recognizing that it affords permanent protection from public inspection for Commonwealth's Attorney's criminal litigation files. We identified a series of older open records decisions confirming this position. A copy of that open records decision is attached and we rely on its legal reasoning as well as the legal reasoning of the authorities cited therein. In August 2013, the Kentucky Supreme Court affirmed this interpretation of KRS 61.878(1)(h), observing, "In 1992, the General Assembly amended this statute by further exempting from the Act 'records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation,' with such records to remain exempt even 'after enforcement action, including litigation, is completed or a decision is made to take no action.'" City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 (Ky. 2013).
Mr. Fox urges this office to adopt an overly narrow construction of KRS 61.878(1)(h). That statute recognizes no exception to the rule of permanent protection for Commonwealth's Attorney's criminal litigation files and we are not empowered to create one whatever Mr. Fox's purpose. KRS 61.872(2) provides that "[a]ny person shall have a right to inspect public records. " In Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. App.), Kentucky's courts determined that an open records analysis:
does not turn on the purposes for which the request is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to access information as the next.
Thus, all open requesters enjoy an equal right of access to public records. Statutes restricting access to public records also apply to all open records requesters. Accord, 16-ORD-046. Mr. Fox's interest in comparing a copy of the order he obtained from the court with the Commonwealth's Attorney's criminal litigation file copy is not sufficient to overcome KRS 61.878(1)(h), expressly restricting access to the Commonwealth's Attorney's criminal litigation records. The Office of the Commonwealth's Attorney properly relied on KRS 61.878(1)(h) in denying his request.
Either party may appeal this decision 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.