December 1, 1993





IN RE: W. Kenneth Nevitt/Office of the Breathitt County

Commonwealth Attorney






This appeal originated in a request for records submitted by Mr. W. Kenneth Nevitt to Mr. Michael A. Stidham, Commonwealth Attorney for Breathitt County, on October 22, 1993. Those records are identified as "all grand jury transcripts and/or witness statements relating to Commonwealth of Kentucky v. Danny Ray Ratliff." Mr. Stidham denied Mr. Nevitt's request on October 28, 1993, advising him that all records maintained by the Commonwealth Attorney pertaining to criminal investigations are exempted from the mandatory disclosure provisions of the Open Records Law by KRS 61.878(1)(g). Mr. Nevitt asks that we review the Commonwealth Attorney's denial of his request to determine if his actions were consistent with that law.


We are asked to determine if Mr. Stidham properly relied on KRS 61.878(1)(g) in denying Mr. Nevitt's request for records in the Commonwealth Attorney's file. For the reasons set forth below, and based on the Kentucky Supreme Court's decision in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993), we conclude that Mr. Stidham properly denied Mr. Nevitt's request.


In Skaggs, supra, the Kentucky Supreme Court noted that in 1992 the Open Records Law was amended to include the following language:


[R]ecords 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.


In enacting that provision, the General Assembly clearly intended to afford permanent protection to the records of the Commonwealth Attorney which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law. Accordingly, we believe that Mr. Stidham properly denied Mr. Nevitt's request.


Mr. Nevitt may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action against the Commonwealth Attorney's Office in the circuit court, he should not be named as a party in that action, or in any subsequent proceedings.














Distributed to:


Hon. W. Kenneth Nevitt

Attorneys At Law

Williams & Wagoner

One Oxmoor Place

101 Bullitt Lane, Suite 202

Louisville, KY 40222


Hon. Michael A. Stidham

Acting Commonwealth Attorney

39th Judicial District

100 Brown Street

P. O. Box 732

Jackson, KY 41339