April 9, 1996

In re: Joe Wagner/Commonwealth's Attorney, 2nd Judicial District


This matter comes to the Attorney General as an appeal by Joe Wagner in connection with his requests to the Office of the Commonwealth's Attorney for a copy of the tape of the grand jury proceedings which resulted in his indictment.

Joe Wagner filed requests with the Office of the Commonwealth's Attorney in November and December 1995 seeking a copy of the tape of the grand jury proceedings relative to his indictment. In support of his requests he cited in part the provisions of KRS 61.884.

Eva L. Walker, Esq., Assistant Commonwealth's Attorney, responded to both requests in letters to Joe Wagner, dated November 17, 1995 and December 13, 1995. In each letter the request was denied and the authority cited in support of the denial was “KRS 61.878(h).”

KRS 61.884, cited by Joe Wagner, provides:

Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.

KRS 61.878 sets forth those public records which are excluded from 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, 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. See Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993) and 93-ORD-137, a copy of which is enclosed.

It is, therefore, the decision of the Attorney General that the Office of 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 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:

Joe Wagner #111705

Western Kentucky Correctional Complex

Dorm B-1

P. O. Box 5000

Eddyville KY 42038-5000

Eva L. Walker, Esq.

Assistant Commonwealth's Attorney

McCracken County Courthouse

310 South Sixth Street

Paducah KY 42003-1794