23-ORD-096
April 26, 2023
In re: Jimmie Hall/Butler County Commonwealth’s Attorney
Summary: The Butler County Commonwealth’s Attorney (the
“Commonwealth’s Attorney’”) violated the Open Records Act (“the Act”)
when it failed to respond to a request within five business days of
receiving it.
Open Records Decision
On March 12, 2023, inmate Jimmie Hall (“Appellant”) submitted a request to
the Commonwealth’s Attorney for records related to a cell phone seized in his
criminal case. On March 27, 2023, having received no response from the
Commonwealth’s Attorney, the Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request to inspect records under the
Act, a public agency “shall determine within five (5) [business] days . . . 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 five (5) day period, of its decision.”
The Commonwealth’s Attorney does not deny that he received the Appellant’s request
or claim that he issued a timely response. Rather, in response to this appeal, the
Commonwealth’s Attorney states only that he would address this matter with the
Appellant’s attorney, rather than responding to the Appellant directly.
The Office recognizes the ethical obligations of attorneys to not engage in direct
communications with adverse parties represented by counsel regarding the subject
matter of the representation. See SCR 3.130(4.2). However, the rule does not prohibit
an attorney from communicating with a represented adverse party who initiated the
communication if the extent of the communication is for the sole purpose of informingthe party that the attorney will not communicate with him and will only speak to his
retained counsel. See id. at comment 4 (a lawyer having independent justification or
legal authorization for communicating with a represented person is permitted to do
so). In the context of requests to inspect records, the Act not only provides the
“independent justification or legal authorization” for a prosecutor to respond to a
criminal defendant’s request, but also, it requires the prosecutor to respond within
five business days of receiving the request. KRS 61.880(1). Thus, when a prosecutor
receives from a criminal defendant represented by counsel a request to inspect
records pertaining to the criminal matter, the prosecutor must at a minimum respond
to the request and inform the defendant that his request is being denied, either
because SCR 3.130(4.2) prevents further communications with the defendant or
because the records are exempt under KRS 61.878(1)(h), which exempts from
inspection the case files of Commonwealth’s and County Attorneys, or better yet, for
both reasons. Simply put, a public agency may not ignore a request to inspect records,
unless under a court order of no-contact. See, e.g., 21-ORD-164 (a law enforcement
agency did not violate the Act when it relied on a court order of no-contact to not
respond to an inmate’s request for records). Here, the Commonwealth’s Attorney does
not dispute having received the Appellant’s request or otherwise claim to have timely
issued a response. Accordingly, he did not comply with KRS 61.880(1).1
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
1
On appeal, the Commonwealth’s Attorney advises he has spoken with the Appellant’s attorney
regarding this matter and has provided him with most of the requested records. However, a dispute
remains between the parties regarding the logistics of providing access to some highly sensitive
materials. That dispute is currently before the Butler County Circuit Court.#140
Distributed to:
Jimmy Hall #278442
Blake Chambers