ADMINISTRATIVE OFFICE OF COURTS DESTROYS MISDEMEANOR CONVICTIONS AFTER FIVE YEARS.

The Administrative Office of the Courts has implemented a program to destroy paper and electronic records of misdemeanor convictions retained by Court Clerks after five years.  This program has drawn negative responses from judges, prosecutors, domestic violence workers, and the public.
LawReader Editor’s Note: See: Courts are not a public agency as defined by Chapter 17.  AOC is under the Judicial Branch of Government.  It is not a public agency.  It is exempt from KRS Chapter17 regarding the retention of records.
 The following story was published in the Courier-Journal on Dec. 16, 2007.
By Andrew Wolfson  Reprinted from The Courier-Journal
State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.
Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent “six or seven burly men” to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.
Electronic records of old misdemeanor convictions also have been purged from the state court computer system.
State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.
Prosecutors and judges said the move will be a boon for criminals.
“This wipes an offender’s record clean and cuts us off at the knees,” said Chris Foster, an assistant commonwealth’s attorney who prosecutes domestic violence cases.
Commonwealth’s Attorney Dave Stengel said prosecutors have lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.
And noting that day-care centers and nursing homes will no longer be able to check job applicants for violent misdemeanor convictions over 5 years old, county attorney Irv Maze said the decision to destroy those records “puts our most vulnerable citizens at risk.”
District Judge Jerry Bowles said the move also will prevent enforcement of a federal law that bars people from owning or possessing firearms if they ever had a domestic violence conviction. “The whole purpose was to get guns out of batterers’ hands permanently,” he said.
Jefferson County Chief District Judge Donald Armstrong Jr. said he “asked and begged the AOC not to do this, but they said they had an order.”
Armstrong said the decision to destroy records also hurts “innocent people” who are no longer able to prove that a charged was dismissed or that they were acquitted.
Deputy clerks say two or three people a day come to the courthouse — some in tears — after an employer or prospective employer finds out that they were arrested on a charge that was later dropped.
“Now they can’t prove that,” Armstrong said.
Losavio and Stengel said one supervisor in the clerk’s office archives — Diane Hawkins — was so intent on saving the records that she threw herself across them; Losavio calls her “Joan of Archives.”
Destruction required
John Dobson, the AOC’s general manager of court services, said the destruction of the records was required under a policy that Chief Justice Joseph Lambert signed Aug. 29, 2005.
Dobson said the court system, which already stores more than 1 million cubic feet of records statewide, must make space for the new 1 million or so cases filed each year. And state courts have maintained a schedule for pruning records since they were unified in 1977, he said, adding that the only thing different now is that it’s been extended to electronic records.
Dobson said a committee that included clerks, AOC officials and representatives from the chief justice’s office decided last year to include electronic records because they are not official court documents. Only the paper court file is official, and without it, there is nothing to substantiate the electronic record.
“The electronic record needs to correspond to the paper record,” he said, adding that job applicants whose criminal files have been destroyed can be given a form letter to their employer vouching that the records no longer exist.
Dobson said he didn’t know how far along the destruction process is in other counties. In Fayette, Circuit Clerk Wilma Lynch said her staff is still working on discarding files from 1998.
Thomas Dibble, a records manager for the Superior Court of New Jersey and a nationally recognized expert on record retention, described the Kentucky AOC’s seizure of documents last month as “high-handed” and said the state erred in not involving court users in the decision-making process.
Scott Furkin, the AOC’s general counsel, responded by noting, “This is a Court of Justice policy … and we respect the separation of powers around here.”
Furkin acknowledged, however, that the policy may need to be changed so that domestic violence convictions are not purged.
Dibble, who consults for the National Center for State Courts, said he would argue that electronic records should be kept permanently because “computer memory is so cheap” and there is no reason to discard them.
Most court systems in other states also have policies on purging records, but most only set minimum periods for which records must be retained, and allow individual courts to elect to keep them longer.
The Kentucky policy is mandatory.
The policy does require that case information be retained for dozens of crimes that carry enhanced penalties for subsequent offenses.
But First Assistant Commonwealth’s Attorney Harry Rothgerber Jr., said that when his office checked on an offender convicted last year of threatening Judge Bowles, it found the offender’s conviction for possession of drug paraphernalia had been erased.
As a result, when charged with the same offense earlier this year, he was labeled as a first offender. A bench warrant is pending for his arrest.
“We have a person out there who could be charged with a felony” if the previous records weren’t destroyed, Rothgerber said. “I am livid about this.”
Carol Cobb, who heads the commonwealth’s attorney’s domestic violence division, said the destruction of records will undercut the truth-in-sentencing law, which allows jurors to be told about prior misdemeanor convictions.
“It is very upsetting that they would do this without consulting the people it affects,” she said.
******************************
This story by Andy Wolfson has raised some spirited criticism on the internet.
The following e-mail comments were published by the Courier-Journal regarding
AOC destruction of criminal records.

Reprinted fromThe Courier-JournalState court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent “six or seven burly men” to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.Electronic records of old misdemeanor convictions also have been purged from the state court computer system.State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.Prosecutors and judges said the move will be a boon for criminals.”This wipes an offender’s record clean and cuts us off at the knees,” said Chris Foster, an assistant commonwealth’s attorney who prosecutes domestic violence cases.Commonwealth’s Attorney Dave Stengel said prosecutors have lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.And noting that day-care centers and nursing homes will no longer be able to check job applicants for violent misdemeanor convictions over 5 years old, county attorney Irv Maze said the decision to destroy those records “puts our most vulnerable citizens at risk.”District Judge Jerry Bowles said the move also will prevent enforcement of a federal law that bars people from owning or possessing firearms if they ever had a domestic violence conviction. “The whole purpose was to get guns out of batterers’ hands permanently,” he said.Jefferson County Chief District Judge Donald Armstrong Jr. said he “asked and begged the AOC not to do this, but they said they had an order.”Armstrong said the decision to destroy records also hurts “innocent people” who are no longer able to prove that a charged was dismissed or that they were acquitted.Deputy clerks say two or three people a day come to the courthouse — some in tears — after an employer or prospective employer finds out that they were arrested on a charge that was later dropped.”Now they can’t prove that,” Armstrong said.Losavio and Stengel said one supervisor in the clerk’s office archives — Diane Hawkins — was so intent on saving the records that she threw herself across them; Losavio calls her “Joan of Archives.”John Dobson, the AOC’s general manager of court services, said the destruction of the records was required under a policy that Chief Justice Joseph Lambert signed Aug. 29, 2005.Dobson said the court system, which already stores more than 1 million cubic feet of records statewide, must make space for the new 1 million or so cases filed each year. And state courts have maintained a schedule for pruning records since they were unified in 1977, he said, adding that the only thing different now is that it’s been extended to electronic records.Dobson said a committee that included clerks, AOC officials and representatives from the chief justice’s office decided last year to include electronic records because they are not official court documents. Only the paper court file is official, and without it, there is nothing to substantiate the electronic record.”The electronic record needs to correspond to the paper record,” he said, adding that job applicants whose criminal files have been destroyed can be given a form letter to their employer vouching that the records no longer exist.Dobson said he didn’t know how far along the destruction process is in other counties. In Fayette, Circuit Clerk Wilma Lynch said her staff is still working on discarding files from 1998.Thomas Dibble, a records manager for the Superior Court of New Jersey and a nationally recognized expert on record retention, described the Kentucky AOC’s seizure of documents last month as “high-handed” and said the state erred in not involving court users in the decision-making process.Scott Furkin, the AOC’s general counsel, responded by noting, “This is a Court of Justice policy … and we respect the separation of powers around here.”Furkin acknowledged, however, that the policy may need to be changed so that domestic violence convictions are not purged.Dibble, who consults for the National Center for State Courts, said he would argue that electronic records should be kept permanently because “computer memory is so cheap” and there is no reason to discard them.Most court systems in other states also have policies on purging records, but most only set minimum periods for which records must be retained, and allow individual courts to elect to keep them longer.The Kentucky policy is mandatory.The policy does require that case information be retained for dozens of crimes that carry enhanced penalties for subsequent offenses.But First Assistant Commonwealth’s Attorney Harry Rothgerber Jr., said that when his office checked on an offender convicted last year of threatening Judge Bowles, it found the offender’s conviction for possession of drug paraphernalia had been erased.As a result, when charged with the same offense earlier this year, he was labeled as a first offender. A bench warrant is pending for his arrest.”We have a person out there who could be charged with a felony” if the previous records weren’t destroyed, Rothgerber said. “I am livid about this.”Carol Cobb, who heads the commonwealth’s attorney’s domestic violence division, said the destruction of records will undercut the truth-in-sentencing law, which allows jurors to be told about prior misdemeanor convictions.”It is very upsetting that they would do this without consulting the people it affects,” she said.******************************This story by Andy Wolfson has raised some spirited criticism on the internet.The following e-mail comments were published by the Courier-Journal regardingAOC destruction of criminal records.

 


                “I think the AOC has just violated the laws they are supposed to protect”

Well, since you think it is perfectly acceptable for the police to do it, why cant the AOC???

Posted: Sat Dec 16, 2006 2:30 pm


                ~~If I were a criminal I would be elated, as a victim I would be fearful,as a citizen I am outraged. Gee, could it be, nobody cares? First and formost, those who are responsible should be held accountable for aiding and abetting criminals. How many women will be murdered and how many children will be abused due to the lack of forsight of these idiots. ~~

>post snipped due to brevity< Criminals/abusers, generally speaking, are unconcerned with paperwork. It is not a deterrent. The objective of many judges in Family Court, in Jefferson County, is to get you in and out and have time to pat themselves on the back, in your alloted time. Regardless of past or future abuse or victims. Paperwork or the destruction of said paperwork will not affect such indifference. I doubt that women and children will be abused by lack of foresight, many people hold on to their useless paperwork, but I certainly believe that many will be, and have been murdered and abused due to the abuse of power and overinflated egos of the Family Court judges in Jefferson County. That is where outrage should be directed, not toward useless paperwork

Posted: Sat Dec 16, 2006 1:29 pm


LawReader Editor’s Note:  Courts are not a public agency as defined by Chapter 17.   

                By reading the KRS I think the AOC has just violated the laws they are supposed to protect… who charges judge Lambert for his decision?

17.142 Segregation of criminal records.
(1) Each law enforcement or other public agency in possession of arrest records,
fingerprints, photographs, or other data whether in documentary or electronic form
shall upon written request of the arrestee as provided herein segregate all records
relating to the arrestee in its files in a file separate and apart from those of convicted  persons, if the person who is the subject of the records:
(a) Is found innocent of the offense for which the records were made; or
(b) Has had all charges relating to the offense dismissed; or
(c) Has had all charges relating to the offense withdrawn.
(2) A person who has been arrested and then has come within the purview of subsection
(1) of this section may apply to the court in which the case was tried, or in which it
would have been tried in the event of a dismissal or withdrawal of charges, for
segregation of the records in the case. Upon receipt of such application the court
shall forthwith issue an order to all law enforcement agencies in possession of such
records to segregate the records in accordance with the provisions of this section.
(3) Each law enforcement agency receiving an order to segregate records shall
forthwith:
(a) Segregate the records in its possession in a file separate and apart from records  of convicted persons;
(b) Notify all agencies with which it has shared the records or to which it has
provided copies of the records to segregate records; and
(c) All records segregated pursuant to this section shall show disposition of the
case.
(4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as  provided in those statutes.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 374, sec. 2, effective July 15, 1996. — Created
1980 Ky. Acts ch. 127, sec. 1, effective July 15, 1980.

17.142 Segregation of criminal records.
(1) Each law enforcement or other public agency in possession of arrest records,
fingerprints, photographs, or other data whether in documentary or electronic form
shall upon written request of the arrestee as provided herein segregate all records
relating to the arrestee in its files in a file separate and apart from those of convicted  persons, if the person who is the subject of the records:
(a) Is found innocent of the offense for which the records were made; or
(b) Has had all charges relating to the offense dismissed; or
(c) Has had all charges relating to the offense withdrawn.
(2) A person who has been arrested and then has come within the purview of subsection
(1) of this section may apply to the court in which the case was tried, or in which it
would have been tried in the event of a dismissal or withdrawal of charges, for
segregation of the records in the case. Upon receipt of such application the court
shall forthwith issue an order to all law enforcement agencies in possession of such
records to segregate the records in accordance with the provisions of this section.
(3) Each law enforcement agency receiving an order to segregate records shall
forthwith:
(a) Segregate the records in its possession in a file separate and apart from records  
of convicted persons;
(b) Notify all agencies with which it has shared the records or to which it has
provided copies of the records to segregate records; and
(c) All records segregated pursuant to this section shall show disposition of the
case.
(4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as
provided in those statutes.
Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 374, sec. 2, effective July 15, 1996. — Created
1980 Ky. Acts ch. 127, sec. 1, effective July 15, 1980.

369.112 Retention of electronic records — Originals.
(1) If a law requires that a record be retained, the requirement is satisfied by retaining  an electronic record of the information in the record which:
(a) Accurately reflects the information set forth in the record after it was first
generated in its final form as an electronic record or otherwise; and
(b) Remains accessible for later reference.
(2) A requirement to retain a record in accordance with subsection (1) of this section  does not apply to any information the sole purpose of which is to enable the record  to be sent, communicated, or received.
(3) A person may satisfy subsection (1) of this section by using the services of another  person if the requirements of that subsection are satisfied.
(4) If a law requires a record to be presented or retained in its original form, or provides  consequences if the record is not presented or retained in its original form, that law  is satisfied by an electronic record retained in accordance with subsection (1) of this  subsection.
(5) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (1) of this subsection.
(6) A record retained as an electronic record in accordance with subsection (1) of this section satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after August 1, 2000, specifically prohibits the use of an electronic record for the specified purpose.
(7) This section does not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency’s jurisdiction.
Effective: August 1, 2000
History: Created 2000 Ky. Acts ch. 301, sec. 12, effective August 1, 2000.

Posted: Sat Dec 16, 2006 12:53 pm


                Has any one checked to see if this violates federal law? As well does this effect the freedom of information act?

Posted: Sat Dec 16, 2006 10:43 am


                This is unbelievable!!!  I am so mad right now I don’t know where to start. It seems to me that we pay enough money in taxes to the good ol’ state of Kentucky that they should have the money for storage. Especially now that a criminal will be turned loose instead of wasting our money in a jail after an arrest because all of the records showing they are a habitual offender are gone. What morons!!!! The people in our government should be smarter than this. Maybe they are book smart but where is their common sense???? I agree with the statement about the reporters. I guess they are too busy hounding the victims of crimes for a story to worry about the ones that committed the crime! After all, I guess it’s a juicier story that way with all the tears, sadness & pain. Thank God guns are not illegal. I guess we as citizens need to protect ourselves because the people in our government are either too stupid or do not care about us.

Posted: Sat Dec 16, 2006 10:33 am


Courts are not a public agency as defined by Chapter 17.
 

Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky., 1987) public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency.

York v. Com., 815 S.W.2d 415 (Ky. App., 1991)   September 20, 1991

A public agency is not defined in KRS Chapter 17 but is defined in several other statutes including KRS 7.107, 61.805, 61.870, 65.230, and 171.410. The only statute which specifically includes courts within its definition of “public agency” is KRS 61.870 on open records. However, we note that the case of Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), rejected portions of the open records law as it applies to court records. “[W]e are firmly of the opinion that the custody and control of the…  

We agree with the Commonwealth that KRS 17.142 applies to agency records but not to court records, thus we reverse and remand.

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