Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented is whether the Commonwealth's Attorney for the Eighth Judicial Circuit violated the Open Records Act in failing to issue a timely written response to Donald Violett's February 13, 2019, request for DNA reports and analysis pertaining to Warren Circuit Court Case No. 92-CR-532. Having received no response to his request, Mr. Violett initiated this appeal by letter received on March 28, 2019.
On appeal, the Commonwealth's Attorney for the Eighth Judicial Circuit ("Commonwealth's Attorney") stated that "to the best of my knowledge my office did not receive the request attached from Mr. Violett."
In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. ( See 12-ORD-204 and authorities cited therein.) In the absence of proof that the Commonwealth's Attorney's office received the request, this office is unable to determine that any violation of KRS 61.880(1) occurred. We therefore find no violation of the Open Records Act in respect to the lack of a response to Appellant's initial request.
With regard to the substantive issue of the requested records, the Commonwealth's Attorney asserted that the records are exempt pursuant to KRS 61.878(1)(h). That statute provides, in relevant part, that "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." This office has consistently recognized that in amending KRS 61.878(1)(h) 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" ); 11-ORD-005 ("Binding precedent thus establishes that records or information compiled and maintained by the [county or] Commonwealth's attorney pertaining to criminal investigation or criminal litigation are permanently shielded from disclosure . . ."); 14-ORD-069.
The Kentucky Supreme Court has reaffirmed this position in two decisions. Contrasting the criminal litigation files of county and Commonwealth's attorneys with criminal files in the custody of law enforcement agencies, in City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Court emphasized 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). 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 . . . ." Lawson v. Office of the Attorney General, 415 S.W.3d 59, 66 (Ky. 2013). The Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ." Id. at 69. Nevertheless, the Court observed, KRS 61.878(1)(h) "does not preclude [the county or Commonwealth's attorney) from allowing [disclosure] , assuming, of course, that no other exemption applies." We find no violation of the Open Records Act by the Commonwealth's Attorney in refusing to provide records excepted from disclosure under KRS 61.878(1)(h).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.