May 13, 1996

In re: Curtis W. Maxie/Commonwealth's Attorney, 2nd Judicial District


This appeal originated in a request to inspect records submitted by Curtis W. Maxie to the Commonwealth's Attorney, 2nd Judicial District, on December 6, 1995. Mr. Maxie, an inmate at Western Kentucky Correctional Complex, requested a copy of the “grand jury tape from indictment no. 93-CR-00286,” and enclosed a money order for $3.00 to cover the cost of reproducing and mailing the tape.

On December 13, 1995, Eva L. Walker, Assistant Commonwealth's Attorney, responded to Mr. Maxie's request. She referred him to KRS 61.878(1)(h) which excludes from the mandatory disclosure provisions of the Open Records Act:

[R]ecords or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation. . . . [Such records] shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.

Thus, Ms. Walker denied Mr. Maxie's request, returning his $3.00 money order to him, and suggesting that he might obtain a copy of the tape from his attorney, who was provided with a copy pursuant to RCr 5.16. Mr. Maxie's subsequent efforts to obtain a copy of the tape from the McCracken Circuit Court and the Department of Public Advocacy also proved unsuccessful. This appeal followed.

We are asked to determine if the Commonwealth's Attorney properly relied on KRS 61.878(1)(h) in denying Mr. Maxie's request. For the reasons set forth below, and based on KRS 61.878(1)(h), we conclude that Ms. Walker properly denied his open records request.

In 93-ORD-137, this office analyzed KRS 61.878(1)(h). At page 2 of that decision, we observed:

In enacting this provision, the General Assembly clearly intended to afford permanent protection to the records of the Commonwealth's 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.

Thus, “[n]o matter what the stage or status of the proceedings, the Commonwealth's Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection.” 96-ORD-77, p. 2. See also Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993). Our analysis in this open records appeal is confined to KRS 61.878(1)(h), and its application to the requested record of the Commonwealth's Attorney.

It appears, however, that the Commonwealth's Attorney may have an independent obligation to furnish Mr. Maxie with a copy of the tape of the grand jury proceedings which led to his indictment. RCr 5.16 provides in part:

(1) The attorney for the Commonwealth shall cause all of the testimony before a grand jury to be recorded. . . . The shorthand notes or the recordings and transcript of the same, if any, shall be delivered to and retained by the attorney for the Commonwealth.

. . .

(3) The stenographer or operator of the recording device and any typist who transcribes the stenographer's notes or recordings shall be sworn by the court not to disclose any testimony or the names of any witnesses except to the attorney for the Commonwealth or when testifying in court, and except that any person indicted by the grand jury shall have a right to procure a transcript of any stenographic report or a duplicate of any mechanical recording relating to his indictment or any part thereof upon payment of its reasonable cost.

(Emphasis added.) The Attorney General cannot define the scope of this duty in a legally binding open records appeal, nor is he empowered to enforce the Rules of Criminal Procedure. Rather, it is for the courts to make this determination, and to afford relief to the “person indicted” where appropriate.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Hon. Timothy J. Kaltenbach

Commonwealth's Attorney

2nd Judicial District

McCracken County Courthouse

310 South Sixth Street

Paducah, Kentucky 42003-1794

Curtis W. Maxie #117922

Western Kentucky Correctional Complex

P.O. Box 5000

Eddyville, Kentucky 42038-5000