NOT TO BE PUBLISHED
June 25, 1997
In re: Gary Dillard/Christian County Sheriff
Open Records Decision
This matter comes to the Attorney General on appeal from a
denial by the Christian County Sheriff's Department of Mr. Gary
L. Dillard's open records request, dated April 24, 1997, to
inspect the following:
The material being requested is No: 94-CR-00221 and No:
CR-00433. Motion of Discovery, Tapes of the Preliminary Hearing,
and the Tapes of the Grand Jury, and any all Photographs of the
crime scene entered into evidence by the Commonwealth.
By letter dated May 1, 1997, J. Michael Foster, Esq.,
Christian County Attorney, responding on behalf of the Sheriff's
Department, denied Mr. Dillard's request on the basis that, under
authority of KRS 61.878(1)(h), a prosecutor's files are exempt
from disclosure even after law enforcement activity is concluded.
Mr. Foster also denied access to the records on the basis of
Skaggs v. Redford, Ky., 844 S.W. 2d 389(1993).
By letter dated May 16, 1997, Mr. Dillard submitted a second
request to the Sheriff's Department, requesting to inspect:
All records from indictment 94-CR-00221 and 94-CR-00433 that
is in your file, all statements, Photographs, fingerprints, all
uniform Offense Report and Uniform Citation's [sic], all Report
of Forenic [sic] Laboratory by the Kentucky State Police,
Affidavit for Search Warrant and the Search Warrant, Medical
Report, all witness statements.
In his letter of appeal, dated May 27, 1997, Mr. Dillard
stated that he received no response to this second request.
The issue presented here is whether the Sheriff's Department
violated the Open Records Act in denying Mr. Dillard's request.
For the reasons which follow, we conclude that the Department's
failure to respond to the second request was inconsistent with
the requirements of KRS 61.880(1), and the Department improperly
denied access to the requested records by failing to show that
the disclosure of the information would harm the agency "by
revealing the identity of informants not otherwise known or by
the premature release of information to be used in a prospective
law enforcement action," as required by KRS 61.878(1)(h).
KRS 61.880(1) states, in part, as follows:
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.
Thus, a public agency is required by law to notify the
requesting party in writing within three business days of the
receipt of the request to inspect public records of its decision
relative to that request.
The Department's failure to respond to Mr. Dillard's second
request in writing, even though it may have been the same or
similar to his first request, was a procedural violation of the
requirements of KRS 61.880(1).
Turning to the substantive issue, KRS 61.878(1)(h) excludes from public inspection:
Records of law enforcement agencies or agencies involved in
administrative adjudication that were compiled in the process of
detecting and investigating statutory or regulatory violations if
the disclosure of the information would harm the agency by
revealing the identity of informants not otherwise known or by
premature release of information to be used in a prospective law
enforcement action or administrative adjudication. 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. The exemptions
provided by this subsection shall not be used by the custodian of
the records to delay or impede the exercise of rights granted by
KRS 61.870 to 61.884.
This office has consistently held KRS 61.878(1)(h) authorizes a law enforcement agency, such as a sheriff's department, to withhold its investigative files until the prosecution of a case is concluded, or a decision not to prosecute is made. 93-ORD-106.
Thus, the Sheriff's Department may withhold various documents
until the prosecution of a case is concluded or a decision not to
prosecute is made. Once the prosecution is concluded or a
decision is made not to prosecute, the sheriff's department would
have to make those documents available for inspection unless
"exempted by other provisions of KRS 61.870 to 61.884."
The Department correctly asserts that KRS 61.878(1)(h)
authorizes the prosecutorial files of a County Attorney or a
Commonwealth's Attorney to remain exempt even after the law
enforcement action is concluded. In this regard, this office, in
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 inspection by the Commonwealth's Attorney.
The same would apply to similar records of a County Attorney.
However, records of a sheriff's department or a police department
would not fall within this class of records which are forever
exempt under KRS 61.878(1)(h). In 94-ORD-131, this office stated:
While there is a continuing exception for the records of
county attorneys and Commonwealth's attorneys even after the
criminal investigation or litigation has been completed, that
continuing exception does not apply to records held by the
sheriff's department. Skaggs v. Redford, Ky., 844 S.W.
2d 389 (1993), 93-ORD-137 and 93-ORD-106.
This office has consistently maintained this position,
relative to sheriff's department files, in open record decisions
rendered subsequent to the Skaggs decision and the
enactment of the continuing exemption of KRS 61.878(1)(h)
relative to the prosecutorial files of the county attorneys and
the Commonwealth's attorneys. 93-ORD-106; 93-ORD-137; 94-ORD-131.
Once the prosecution of a case is concluded or a decision has
been made not to prosecute, the investigative files of a
sheriff's department or a police department are open for
inspection, unless otherwise exempt under one of the exceptions
to disclosure under the Open Records Act.
In the instant case, the Sheriff's Department cited KRS
61.878(1)(h) as authority for withholding the records. However,
to avail itself of this exemption after the prosecution of a case
is concluded or a decision has been made not to prosecute, the
Department must establish how the disclosure of the records would
harm the agency. If a record is withheld from public disclosure
because revealing the item would be harmful to law enforcement,
the custodian has the burden of showing that the item is being
properly withheld for that reason. 94-ORD-133.
The Sheriff's Department apparently construes Skaggs and
an advisory issued by this office in 1994 as holding that a law
enforcement agency need not make a showing of harm as long as the
prisoner is serving his sentence. We do not agree. Neither Skaggs
nor the advisory relieves an agency invoking KRS 61.878(1)(h) of
its duty to show that it would be harmed by release of the
information. No such showing has been made here.
The exception to public inspection, applicable to records of
county attorneys and Commonwealth's Attorneys, after criminal
investigation or the criminal litigation has been completed, is
not applicable to records of the sheriff's department.
94-ORD-131. Since the Sheriff's Department has not met its
statutory burden, as required by KRS 61.880(2)(c), relative to
establishing that the records requested from its office are
exempt under an applicable provision of the Open Records Act, the
requested records should be made available for Mr. Dillard's
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
James M. Ringo
Assistant Attorney General
Gary Dillard #119171
Green River Correctional Complex
P.O. Box 9300
Central City KY 42330
Thomas E. Scillian
Christian County Sheriff
501 S. Main Street
Hopkinsville KY 42240
J. Michael Foster
Christian County Attorney
Post Office Box 24
Hopkinsville KY 42241-0024