Attorney General Daniel Cameron’s office has distinguished an open records request submitted to Governor Beshear’s office — on the same day that Cameron announced his intention to run for governor — from an active investigation into the Governor’s office.
The Associated Press reports that Beshear characterized the request for information concerning amounts paid in an “intentional and willful” violation of an executive branch ethics opinion prohibiting an attorney general running for governor from using the resources of the attorney general’s office to investigate his gubernatorial opponent.
https://apnews.com/article/kentucky-government-and-politics-dfd1968cb3d…
The AP indicates that Cameron requested records “related to a lawsuit filed by the governor challenging two laws enacted by the state’s Republican-led legislature” which Cameron is defending in court.
“One of the measures being contested by the governor would bar anyone but the attorney general from using state funds to challenge the constitutionality of a law. It was a direct response to several of Beshear’s lawsuits as governor.”
According to the OAG, “The request sought records detailing the total amount that the governor’s office has expended on outside counsel — a relevant and important fact for the civil litigation brought by the governors.
“Beshear questioned the use of an open records request to obtain the information.
“‘The right way to get documents related to a lawsuit is through the court process,’ the governor said in an interview. ‘We have a process called discovery, which is how you request documents.’
“He conceded that the request likely didn’t violate ethics rules if it wasn’t part of an investigation.”
The Governor — who, as former attorney general for four years was directly engaged in reviewing open records decisions issued by his office — is correct on the questionable use of open records as a discovery tool.
Attorneys regularly use the open records law to obtain public records before filing lawsuits as a sort of “pre-discovery tool. Nothing precludes them from doing so, and there is a recognized value to the laws as a way of assessing the merits of a case before it is filed.
But the laws have also been used to supplement discovery once a case has been filed, and in some cases discovery is used contemporaneously with open records requests.
The Attorney General addressed this issue in opinions dating back to the 80s, declaring that, in general:
“Open records requests should not be used as a substitute for discovery requests in litigation under the Civil Rules of Procedure. To do so tends to circumvent the orderly, balanced process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery.”
Nevertheless, the Attorney General opined:
“Although there is litigation in the background of the open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.”
In 1994, lawmakers partially addressed this issue by amending the language found at KRS 61.878 which proceeds the exceptions to the open records law. The statute now provides:
“The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, •except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery•[.]”
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51393
In other words, parties to litigation cannot obtain through the open records laws records that they cannot obtain through discovery.
https://casetext.com/case/wyrick-v-dept-of-revenue
In recent years, lawmakers efforts to curtail the use of open records in lieu of or in addition to discovery have been repeatedly rebuffed by trial lawyers associations and other.
So in the current dispute between the Attorney General and the Governor, neither is entirely wrong, but the Governor’s position is perhaps the more prudent and is grounded in decades of analysis by the courts and the Office of the Attorney General.
Cameron can, in fact, use the open records law to uncover facts for civil litigation, but discovery is the better approach for all of the reasons identified by past administrations.
