05-ord-233 October 19, 2005 In re: McClellan Gaines/Harrison Circuit Court Clerk Open Records Decision

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October 19, 2005

In re: McClellan Gaines/Harrison Circuit Court Clerk

Open Records Decision
At issue in this appeal is whether the Harrison Circuit Court Clerk violated the Kentucky Open Records Act in failing to respond upon receiving the request of McClellan Gaines to inspect “all first and last names of the individuals that were on and a part of the grand jury for hearing on charges and case #05-F-068/05-CR-00035.” Upon receiving notification of Mr. Gaines’ appeal from this office, Wanda C. Marsh, Harrison Circuit Court Clerk, advised this office that she consulted with Circuit Judge Robert McGinnis upon receipt of Mr. Gaines’ request and was “instructed to file the request in the file.” Mr. Gaines is represented by Mr. Wayne Fitzgerald “and was instructed in open court on September 6, 2005,” to make all requests through his attorney.
Because records in the custody of circuit court clerks are properly characterized as court records to which the Open Records Act does not apply, the Attorney General has consistently recognized that circuit court clerks are not bound by the provisions of the Open Records Act. Accordingly, the Harrison Circuit Court Clerk did not violate the Open Records Act by failing to respond in writing upon receipt of Mr. Gaines’ request as otherwise required by KRS 61.880(1). In our view, 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling.
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.
Gregory D. Stumbo

Attorney General

Michelle D. Harrison

Assistant Attorney General

Distributed to:
McClellan Gaines, #167658

Eastern Kentucky Correctional Complex

200 Road to Justice

West Liberty, KY 41472

Wanda C. Marsh

Circuit Court Clerk

115 Court Street, Suite 1

Cynthiana, KY 41031

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