25-ORD-130
May 22, 2025
In re: Merissa Henderson/Commonwealth Attorney, 21st Judicial Circuit
Summary: The Commonwealth Attorney for the 21st Judicial Circuit
(“the Commonwealth’s Attorney”) did not violate the Open Records Act
(“the Act”) when she denied a request for records contained in her
criminal investigation or litigation files.
Open Records Decision
Merissa Henderson (“Appellant”) submitted a request to the Commonwealth’s
Attorney for all records related to any legal proceeding involving her or her children
from January 1, 2017, to the date of her request. She further specified that the
requested
records
included
“inter-agency
communications”
between
the
Commonwealth’s Attorney and law enforcement agencies. In response, the
Commonwealth’s Attorney denied the request under KRS 61.878(1)(h) as seeking
“records or information compiled and maintained by County Attorneys or
Commonwealth’s Attorneys pertaining to criminal investigations or criminal
litigation.” This appeal followed.
The Appellant challenges the Commonwealth’s Attorney’s invocation of
KRS 61.878(1)(h) on two grounds. First, she asserts that the criminal litigation is no
longer active, meaning the records are not categorically exempt. Second, she asserts
that the requested records relate to “inter-agency communications, administrative
decision-making,
and
potential
misconduct,”
which
she
asserts
makes
KRS 61.878(1)(h) inapplicable.
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 totake 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”).
Therefore, even if the prosecution has concluded, the Commonwealth’s
Attorney can still rely on KRS 61.878(1)(h) to deny inspection of its criminal
prosecution file. Further, the Commonwealth’s Attorney explains that “[a]ny and all
items requested” by the Appellant are “related to [her] criminal prosecution.”1 Such
records are permanently exempt under KRS 61.878(1)(h). Thus, the Commonwealth’s
Attorney did not violate the Act when she denied the Appellant’s request.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
1
Once a public agency states affirmatively that a record does not exist, the burden shifts to the
requester to make a prima facie case that the requested record does or should exist. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). To make a prima facie case that
the agency possesses or should possess the requested record, the requester must point to some statute,
regulation, or factual support for this contention. See, e.g., 21-ORD-177; 11-ORD-074. The Appellant
has not presented a prima facie case that the Commonwealth’s Attorney possesses responsive records
that are not parts of her criminal litigation files.#177
Distributed to:
Merissa Henderson
Ashton McKenzie, Commonwealth’s Attorney