23-ORD-224
August 21, 2023
In re: Alastair Couch/Fayette County Commonwealth’s Attorney
Summary: The Fayette County Commonwealth’s Attorney (“the
Commonwealth’s Attorney”) did not violate the Open Records Act (“the
Act”) when she withheld records pertaining to criminal litigation under
KRS 61.878(1)(h).
Open Records Decision
On July 3, 2023, inmate Alastair Couch (“Appellant”) asked the
Commonwealth’s Attorney to provide “a complete copy of any and all emails sent
and/or received” by anyone in the Commonwealth’s Attorney’s office concerning the
Appellant or another named individual since July 1, 2010. The Commonwealth’s
Attorney denied the Appellant’s request because the requested emails were records
pertaining to criminal investigations and litigation, which are exempt under
KRS 61.878(1)(h). This appeal followed.
Under KRS 61.878(1)(h), “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 [the Act] and shall
remain exempted after enforcement action, including litigation, is completed or a
decision is made to take no action.” On appeal, the Commonwealth’s Attorney
reiterates that all the requested records pertain to a criminal investigation and
criminal litigation, and therefore are exempt under KRS 61.878(1)(h).
The Appellant, however, claims he is entitled to obtain the records under
KRS 197.025(2), which provides that “KRS 61.870 to 61.884 to the contrary
notwithstanding, the [Department of Corrections] shall not be required to comply
with a request for any record from any inmate confined in a jail or any facility or any
individual on active supervision under the jurisdiction of the department, unless therequest is for a record which contains a specific reference to that individual.” This
argument fails for two reasons. First, the Appellant did not request records from the
Department
of
Corrections.
Second,
the
Appellant
incorrectly
construes
KRS 197.025(2) to mean an inmate is entitled to obtain any record, even if exempt
from inspection, if it contains a specific reference to him. The opposite is true, and the
Office has rejected that argument as “clearly antithetical to the intention of the
General Assembly in enacting KRS 197.025, which, when read in its entirety, is to
provide fewer rights of inspection to inmates than to the general public.” 21-ORD-
198. Accordingly, the Commonwealth’s Attorney did not violate the Act when she
denied the Appellant’s request for criminal investigation and litigation records under
KRS 61.878(1)(h).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#328
Distributed to:
Alastair Couch, #247390
Patrick M. Malone, Esq.
Kimberly Henderson Baird, Esq.