NOT TO BE PUBLISHED 

94-ORD-131

November 1, 1994

IN RE: Darrell Perry/Daviess County Sheriff's Department

OPEN RECORDS DECISION

This matter comes to the Attorney General as an appeal by Darrell Perry in connection with his attempts to inspect and obtain copies of specifically described documents in the possession of the sheriff's department.

In a request to the sheriff's department, dated August 31, 1994, Mr.Perry requested the following documents:

Keith Cain, Chief of Investigation, responded on behalf of the sheriff's department to Mr. Perry in a letter dated September 7, 1994, and advised in part as follows:

94-ORD-131

Your attorney of record was made available of these requested documents during the course of your trial. I suggest he be contacted for them.

Mr. Perry's notice of appeal was received by this office on September 14, 1994. He stated that he had contacted his former attorney and that person had sent what relevant information he had on the matter. Mr. Perry requested that this office assist him in securing the records in question.

KRS 61.880(1) sets forth the procedural guidelines relative to the public agency's response to a request submitted under the Open Records Act. That statute provides 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. 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.

The response of the sheriff's department is deficient as it did not follow the statutory requirements. There was no reference to the specific exception to public inspection in the Open Records Act being relied upon by the sheriff's department and there was no explanation as to how that exception applied to the documents withheld.

Among the statutorily recognized exceptions to open and public records are those set forth in KRS 61.878(1)(h):

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the

94-ORD-131

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[.]

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' department would have to make those documents available for inspection unless some other exception to public inspection is applicable.

While there is a continuing exception from public inspection 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. See Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993), 93-ORD-137 and 93-ORD-106.

KRS 61.880(2)(c) provides in part that the burden of proof in an open records proceeding shall rest with the public agency. See also KRS 61.882(3). Even if the public agency would have been justified in withholding some of the records requested, the public agency has not met the burden of proof

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imposed upon it and has not demonstrated that any of the documents involved were properly withheld.

It is, therefore, the decision of the Attorney General that the public agency's response to the request for documents did not conform to the requirements of KRS 61.880(1). 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. Since the public agency has not sustained the burden of proof imposed upon it the requested records must be made available to the requesting party for inspection and copying.

The Daviess County Sheriff's Department may challenge this decision by initiating action in the appropriate circuit court. While KRS 61.880(3) requires that a public agency notify the Attorney General of any actions filed against it under the Open Records Act, that statute also provides that the Attorney General shall not be named as a party in any actions involving the Open Records Act.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/1194

Copies of this decision

have been mailed to:

Darrell Perry, #105996

Western Kentucky Correctional Complex

Box 5000

Eddyville, Kentucky 42038

Keith Cain

Chief of Investigation

Daviess County Sheriff's Department

Courthouse

212 Ann Street

Owensboro, Kentucky 42303