NOT TO BE PUBLISHED

96-ORD-82

April 16, 1996

In re: Jimmy Lee Curtis/Pamela K. Crowe

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from Pamela K. Crowe's denial of Jimmy Lee Curtis's request for copies of “tapes of the preliminary hearing and . . . tapes of the Grand Jury, and any/all photographs entered into evidence by the Commonwealth in the case of Commonwealth v. Jimmy Curtis, indictment #92-CR-032.” Ms. Crowe is a part-time court reporter for the Monroe Circuit Court. On March 6, 1996, Mr. Curtis submitted his open records request to Ms. Crowe, and on March 2, 1996, she responded:

I do not have tapes of your preliminary hearing. I do not have grand jury tapes. The pictures introduced at trial are attached to the transcript of evidence I prepared and filed in the clerk's office.

Dissatisfied with Ms. Crowe's response, Mr. Curtis initiated this appeal.

We are asked to determine if Ms. Crowe violated provisions of the Open Records Act in responding to Mr. Curtis's request. For the reasons set forth below, we conclude that her response was consistent with the Act.

KRS 61.872(4) provides:

If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records

Ms. Crowe properly responded to Mr. Curtis's request by advising him that the records he seeks are no longer in her custody, and furnishing him with the name of the official custodian, in this case the Monroe Circuit Court Clerk. Obviously, Ms. Crowe cannot afford Mr. Curtis access to records which she does not have or which are not in her custody. In our view, her response was entirely consistent with the Open Records Act.

We do not mean to suggest that Ms. Crowe is subject to the Open Records Act. In general, records of the court and judicial agencies 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). Ms. Crowe is a part-time employee of the Monroe Circuit Court. Nevertheless, she substantially complied with the procedural requirements of the Act. Accordingly, we need not address the applicability of the Act to her.

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

aps/308

Distributed to:

Jimmy Lee Curtis #114974

GRCC

P. O. Box 277

Central City KY 42330

Pamela Crowe

Court Reporter

P. O. Box 277

Tompkinsville KY 42167