A recent Facebook post relating to the Bowling Green Independent Schools’s failure or refusal to disclose a settlement agreement prompted this Coalition reminder:
Lexington Fayette Urban County Government v Lexington Herald-Leader
“. . . concluded that because the settlement agreements involved the expenditure of public funds, the public's interest in the outcome of the settlement was, a fortiori, strong: "[t]here could be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is not a public record." Id. at 471. Indeed, the Court explained, "even before enactment of the Open Records statute, we held . . . that `the payment of city funds . . . is a matter with which the public has a substantial concern, against which little weight can be accorded to any desire of the plaintiff in that suit to keep secret the amount of money he received.'" Id. (quoting Courier Journal Louisville Times Co. v. McDonald, 524 S.W.2d 633 (Ky. 1974)).
“Moreover, Lexington Herald-Leader rejected the idea that a confidentiality agreement may impute, per se, a public record with a privacy claim superior to that of the public's right of access:
“[A] confidentiality clause reached by the agreement of parties to litigation cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act. . . . In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection . . .
941 S.W.2d at 472-73; see also id. at 472.”
This language appears in Central Kentucky New Journal v. George, reaffirming the public’s right of public access to settlement agreements involving the expenditure of taxpayer dollars.
If the district asserts that the settlement agreement is not in its possession but in the possession of its insurer, there’s this:
(recognizing that “the City of Shepherdsville’s insurance carrier holds the settlement agreement at the instance of and as custodian on the city’s behalf, and the city’s position that it cannot compel the insurance carrier to disclose the agreement is without merit. ‘In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.’ City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999)).”
But note: The current AG has advanced the legally unsupportable theory that “possession” means “physical possession.”
It is the legal “premise” for his position that public officials’ and employees’ emails and texts relating to public business — that are exchanged on private devices or accounts — are not public records (subject to KORA) because they are not physically possessed by the public agency those officials and employees serve. A challenge to this dangerously narrow reading of “possession” in the definition of “public record” is now on appeal/motion to transfer to the KY Supreme Court.
An appeal to the Attorney General’s office could have unexpected and unwelcomed consequences.