24-ORD-247
November 22, 2024
In re: Christopher Hunt/Commonwealth’s Attorney, 34th Judicial Circuit
Summary: The Commonwealth’s Attorney for the 34th Judicial Circuit
(“the Commonwealth’s Attorney”) did not violate the Open Records Act
(“the Act”) when he denied under KRS 61.878(1)(h) a request for records
contained in his criminal investigation or litigation files.
Open Records Decision
On October 24, 2024, attorney Christopher Hunt (“the Appellant”) submitted
a request to the Commonwealth’s Attorney seeking “[a]ll records related to any
criminal cases against or involving” four named individuals. The Commonwealth’s
Attorney denied the request under KRS 61.878(1)(h) because all responsive records
were “records or information compiled and maintained by County Attorneys or
Commonwealth’s Attorneys pertaining to criminal investigations or criminal
litigation.” 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 [Act] and shall remain exempted
after enforcement action, including litigation, is completed or a decision is made to
take no action.” Thus, “a prosecutor’s litigation files are excluded in toto from the
Act.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013).
“[T]his exemption is unique because it categorically exempts county attorneys’ and
Commonwealth’s attorneys’ criminal litigation or investigative files.” 23-ORD-106
(emphasis in original); see also 02-ORD-112 (finding investigative records in the
possession of a county attorney or Commonwealth’s attorney are “permanently
shielded from disclosure”).
The Appellant attempts to circumvent this categorical exemption by citing
other language from KRS 61.878(1)(h). Thus, it is appropriate to provide context here
by quoting that subsection in full. The provision exempts from disclosure: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
[the Act], 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 [the Act] 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 [the Act].
KRS 61.878(1)(h) (emphasis added).
First, the Appellant quotes the language immediately preceding the “however”
clause in the second sentence of the statute, arguing the Commonwealth’s Attorney’s
file should “be open after enforcement action is completed or a decision is made to
take no action.” But a clause beginning with “however” introduces an exception to, or
a superseding negation of, the language that precedes it. Here, the “however” clause
after the semicolon in KRS 61.878(1)(h) negates, as to county attorneys and
Commonwealth’s attorneys, the immediately preceding language, which provides
that records “shall be open.” Thus, that language applies only to the other agencies
covered by the provision and not the Commonwealth’s Attorney.
Next, the Appellant quotes the final sentence of KRS 61.878(1)(h) to suggest
the Commonwealth’s Attorney is using the exemption “to delay or impede the exercise
of rights granted by” the Act. But because the investigative and litigation files of a
Commonwealth’s attorney are permanently and categorically exempt from
disclosure, the Appellant has no “rights granted by” the Act to inspect those records.
Accordingly, the Commonwealth’s Attorney did not “delay or impede the exercise of”
the Appellant’s rights.
Finally, the Appellant claims the Commonwealth’s Attorney may not rely on
the exemption unless “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.” But this portion of
KRS 61.878(1)(h), likewise, does not apply to the Commonwealth’s Attorney. By“according blanket protection to the investigatory and prosecutorial files of county
and Commonwealth’s attorneys, [the General Assembly] relieved those agencies of
the need to justify non-disclosure by a showing, otherwise required, that disclosure
would harm the agency by revealing an informant or by compromising in some way
a prospective enforcement action.” Lawson v. Ofc. of Atty. Gen., 415 S.W.3d 59, 66
(Ky. 2013). Therefore, the Commonwealth’s Attorney did not violate the Act when he
denied the Appellant’s request for records pertaining to criminal investigations or
criminal litigation.
A party aggrieved by this decision may appeal it by initiating an 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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#432
Distributed to:
Christopher D. Hunt, Esq.
Ronald L. Bowling, Esq.