Request By:
Shawn Ernst, # 159478
Linda Tally Smith
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commonwealth's Attorney, 54th Judicial Circuit, violated the Open Records Act in failing to respond to a request from Inmate Shawn Ernst for copies of grand jury transcripts and, on appeal, denying that request. For the reasons stated below, we find that the Commonwealth's Attorney committed a procedural violation of the Act by not responding to Mr. Ernst within three business days but, on appeal, justified withholding the requested records.
Inmate Shawn Ernst sent a request for records, dated March 16, 2017, to Linda Tally Smith, Commonwealth's Attorney for Boone & Gallatin Counties -- 54th Judicial Circuit ("Commonwealth's Attorney"). Mr. Ernst's request was for "copies of Grand Jury transcripts for both indictment numbers: 00-CR-154 and 02-CR-0024." On May 11, 2017, Mr. Ernst mailed his appeal to the Office of the Attorney General, stating that the Commonwealth's Attorney had "ignored" his request. Upon notification of this appeal, Ms. Smith responded by letter dated April 23, 2017. She admitted that her office had received Mr. Ernst's open records request and that it had been scanned to the case files on March 27, 2017. She found no record in her office files showing that the request had been responded to. As a matter of explanation, Ms. Smith stated that her office has received much correspondence from Mr. Ernst over the past decade and that he even filed motions in Boone Circuit Court Case Numbers 00-CR-00154 and 02-CR-00024 for a copy of the grand jury transcripts in 2011. The Court denied Mr. Ernst's motions, and Ms. Smith explained that Mr. Ernst has filed "so many pro se post-conviction motions and appeals of the denials of the motions that it has grown difficult to determine what issues have been raised and ruled on in past proceedings."
KRS 61.880(1) requires a public agency to respond in writing to a properly submitted request for public records within three (3) business days. The same subsection requires any denial of inspection to be supported by a specific citation to an exception under the law and a brief explanation of how it applies. Prior to the inception of this appeal, the Commonwealth's Attorney had neither responded in writing to Mr. Ernst nor given any legal basis for its failure to provide him with all of the records he requested. We therefore find that the Commonwealth's Attorney committed a procedural violation of KRS 61.880(1).
In denying Mr. Ernst's request on appeal, Ms. Smith invoked the exemption for Commonwealth's Attorneys and county attorneys found at KRS 61.878(1)(h). That statute states, in pertinent 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 [Open Records Act] 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" ).
In two opinions from 2013 the Kentucky Supreme Court reaffirmed this position. Contrasting county and Commonwealth's attorneys' criminal litigation files from criminal files in the custody of police, in
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Supreme Court noted that "the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act . . . by singling them out" in KRS 61.878(1)(h) . In the final footnote of the opinion, the Court "reiterate[d] that county attorney and Commonwealth's attorneys' files are treated differently after the 1992 amendment" to KRS 61.878(1)(h). Id. at 857. Four months later the Supreme Court revisited KRS 61.878(1)(h), recognizing that "The General Assembly enacted this portion of the statute in 1992, and by thus according blanket protection to the investigatory and prosecutorial files of county and Commonwealth's attorneys, relieved those agencies of the need to justify nondisclosure by a showing, otherwise required, that disclosure would harm the agency . . ." In sum, the Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . .."
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 69 (Ky. 2013). There is no question that the records compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation are exempted from the Open Records Act and remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. As Grand Jury transcripts are "records. . . maintained by . . . Commonwealth's attorneys" and "pertain to . . . criminal litigation," the requested Grand Jury transcripts have been properly denied by the Commonwealth's Attorney.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.