April 2, 1996

In re: Andy Kelly/Office of the Madison County Commonwealth's Attorney


This matter comes to the Attorney General as an appeal by Andy Kelly in connection with his request to Thomas J. Smith III, Esq., Commonwealth's Attorney, 25th Judicial Circuit of Kentucky, for copies of public records in his possession.

In a request received March 7, 1996, Andy Kelly asked the Commonwealth's Attorney for a copy of his file under indictment 93-CR-048.

The Commonwealth's Attorney responded to Andy Kelly on March 7, 1996, and informed him that the request for documents was denied pursuant to KRS 61.878(1)(h) and the case which indicates that prosecutors are not required to open their files so long as the judicial proceedings are incomplete.

Andy Kelly's appeal was received by this office on March 19, 1996. He maintained that he was entitled to the material requested because he has not “had a direct appeal as of yet.”

The Commonwealth's Attorney submitted a response to the appeal, received March 22, 1996, citing KRS 61.878(1)(h) and the case of Skaggs v. Commonwealth, Ky., 844 S.W.2d 389 (1993), in support of his denial of the request.

KRS 61.878 sets forth those public records which are excluded form the application of the Open Records Act. Subsection (1)(h) of KRS 61.878 provides in part as follows:

Unless exempted by other provisions of KRS 61.870 to 61.884, 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 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.

Thus, the records of the Commonwealth's Attorney pertaining to criminal investigations and criminal litigation never lose their exempt status. No matter what the stage or status of the proceedings records relative to such activities and endeavors can be withheld from public inspection by the Commonwealth's Attorney.

It is, therefore, the decision of the Attorney General that the Commonwealth's Attorney was justified in denying access to the records in question pursuant to KRS 61.878(1)(h).

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 shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.






Copies of this decision

have been mailed to:

Andy Kelly 115460-3AU08

Eastern Kentucky Correctional Complex

P.O. Box 636

West Liberty, KY 41472

Thomas J. Smith III, Esq.

Commonwealth's Attorney

310 West Irvine Street

P.O. Box 717

Richmond, KY 40476-0717