NOT TO BE PUBLISHED

96-ORD-44

February 26, 1996

In re: Garry Gampfer/Office of the Campbell County Commonwealth's Attorney

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from an open records request submitted by Garry Gampfer to Louis A. Ball, Commonwealth's Attorney for Campbell County and the Clerk of the Campbell County Court. The requested records are identified as the full report that was filed on January 7, 1993, and or January 8, 1993, the full coroner's report done on the victim, the photographs taken at the crime scene on January 7, 1993, and a copy of the aerial photograph taken of Highland Heights which relate to Commonwealth v. Gampfer, 93-CR-084.

Jack L. Porter, Jr., Assistant Commonwealth's Attorney, denied Mr. Gampfer's request on January 17, 1996, advising him that records or information compiled and maintained by the Commonwealth's Attorneys pertaining to criminal investi- gations or criminal litigation are exempted from the provisions of KRS 61.870 to KRS 61.884, the Kentucky Open Records Act. Although Mr. Porter failed to cite the exact statutory exception, it is clear by the language in his response that he was referring to KRS 61.878(1)(h).

We are asked to determine if the Commonwealth's Attorney and the Clerk of the Campbell Court properly denied Mr. Gampfer's request for records. For the reasons set forth below, we conclude that the Commonwealth's Attorney properly denied Mr. Gampfer's request.

KRS 61.878(1)(h) permanently excludes from public inspection:

[R]ecords or information compiled or 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 Commonwealth v. Gampfer, 93-CR-084, which are in the Campbell County Commonwealth's Attorney's possession are forever exempted pursuant to KRS 61.878(1)(h). Accordingly, it is the decision of this office that the Campbell County Commonwealth's Attorney's properly denied Mr. Gampfer's request.

In his letter of appeal, Mr. Gampfer states that he also requested copies of these records from the Clerk of the Campbell County Court. However, he did not submit written documentation to substantiate this claim, such as his letter requesting copies of the records or the letter from the Court denying his open records request. Accordingly, pursuant to 40 KAR 1:030 Section 1, we decline to consider the propriety of the Court's action relative to this request. It should be noted, however, that the Attorney General has formally recognized that records of the courts are not governed by the Open Records Act. Ex parte Farley, Ky., 570 S.W.2d 617 (1978); York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991); KRS 26A.200; KRS 26A.220; 94-ORD-105. In Farley, supra at 624, the Kentucky Supreme Court observed, "T]he custody and control of the records generated by the court in the course of their work are inseparable from the judicial function itself, and are not subject to regulation."

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/as

Distributed to:

Garry Gampfer, #115732

Eastern Kentucky Correctional Complex

Dorm 6-AL-16

P.O. Box 636

West Liberty, Kentucky 41472

Louis A. Ball

Campbell County Commonwealth's Attorney

17th Judicial District of Kentucky

Courthouse

Newport, Kentucky 41071