On March 27, I posted this "informational" piece. It was intended to provide the backstory on why Kentucky's open records laws includes "every state or local court or judicial agency" in the definition of the term "public agency" that appears in the law, but the courts and judicial agencies are NOT subject to the law.

I wrote:

"Did you know that from 1976 to the present, the open records law has defined the term "public agency" to include "every state or local court or judicial agency." The term "judicial agency" refers to agencies of the courts, including the Administrative Office of the Courts and the Kentucky Bar Association.

But access to records of the courts and judicial agencies is, and long has been, governed by court policy and practice and not by the open records law.

In 1978 the Kentucky Supreme Court declared that "the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." The statute to which the court was referring was the open records law.

Following revelations of self-dealing at surplus-property auctions conducted by AOC and other irregularities, the Court requested an audit, adopted judicial branch surplus property guidelines, and implemented a scaled back open records policy governing AOC's administrative records in 2017.

The open records law still includes the courts and judicial agencies in the definition of public agencies subject to the law. The public continues to submit open records requests to the courts and appeals to the attorney general, one as recently as March 21, 2019. But the courts remain firmly in control of their own records."

When I came to the attorney general's office in 1991, I accepted without question the authority of the courts to manage their records as the records relate to the internal opinion making process under the referenced 1978 case and statutes found in Chapter 22A of the Kentucky Revised Statutes.

In time, I came to question how broadly the courts construed this power. In 2004, for example, I wrote an open records decision affirming the Administrative Office of the Courts' denial of a request for records relating to "the construction of facilities utilized as justice centers throughout the Commonwealth for the previous five years" using funds appropriated by the General Assembly. My analysis was based on the 1978 opinion referenced above and Chapter 22A.

But in closing I "remind[ed] the Administrative Office of the Courts that the Supreme Court has declared that 'whatever belongs to the courts belongs to the public,' and, on at least one occasion, questioned whether the Court of Appeals 'painted with too broad a brush in applying [the 1978 case and another case involving its resistence to disclosure of records to the Auditor of Public Accounts] to support its position.'" I suggested that AOC reconsider its denial based on the limited scope of the 1978 opinion.

Its unlikely that AOC reconsidered, but information about expenditures of public funds appropriated to it by the General Assembly is now available on the Kentucky Transparency Portal we discussed on April 20. Other records are available under a court policy developed in 2017, but many of the courts' records remain "nonpublic."

In Kentucky, we largely take it for granted that our right of access to records of the courts and judicial agencies is severely restricted.

The article below suggests that other states are not as complaisant about the public's right of access to court records. Virginia's courts recently restricted access to court records. Its decision has been greeted with indignation and outrage, as reflected in this article.