February 19, 1997

In re: Gary L. Dillard/Commonwealth's Attorney for the 3rd Judicial Circuit

Open Records Decision

This matter comes to the Attorney General on appeal from an open records request submitted by Gary Dillard to John Adkins, Commonwealth's Attorney for the 3rd Judicial Circuit. The requested records are identified as “Tapes of the Preliminary Hearing, Motion for Discovery, and the tapes of the Grand Jury, and any/all photographs of the crine [sic] scene entered into evidence by the Commonwealth in the case of Commonwealth vs Gary L. Dillard, Indictment # 94-CR-00221 and 94-CR-00433.”

John Adkins, Commonwealth's Attorney for the 3rd Judicial Circuit, denied Mr. Dillard's request on January 30, 1997. Mr. Adkins response was as follows:

We oppose release of any information to the defendant pursuant to KRS 61.871(h) [sic] and request that the appeal be dismissed.

We are asked to determine if the Commonwealth's Attorney violated the provisions of the Open Records Act in responding to Mr. Dillard's request for records. For the reasons set forth below, we conclude that Mr. Adkins's response, although procedurally deficient, was substantively correct.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Although Mr. Adkins did respond to Mr. Dillard's request, he did not do so within three business days. We urge the Commonwealth's Attorney for the 3rd Judicial Circuit to review the cited provision to insure that future responses conform to the Open Records Law.

Turning to the substantive issue in this appeal, we find that the Commonwealth's Attorney for the 3rd Judicial Circuit properly denied Mr. Dillard's request.

KRS 61.878(1) permanently excludes from inspection:

[Records] or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation. . . .

Such records are “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.” KRS 61.878(1)(h). Thus, any records pertaining to indictment 94-CR-00221 and 94-CR-00433, which are in the Commonwealth's Attorney's possession, are forever exempt pursuant to KRS 61.878(1)(h). It is the decision of this office that the Commonwealth's Attorney for the 3rd Judicial Circuit properly denied Mr. Dillard's request.

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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General



Distributed to:

Gary L. Dillard #119171

Green River Correctional Complex

P.O. Box 9300

Central City, Kentucky 42330-9300

John L. Adkins

Commonwealth's Attorney

601 South Main Street

Hopkinsville, Kentucky 42240