Request By:
Dr. Donald W. Ingwerson
Superintendent
Jefferson County Public Schools
3332 Newburg Road
Louisville, Kentucky 40218Attention: Dan C. McCubbin
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. John W. Potter, attorney, has appealed to the Attorney General under KRS 61.880 your denial of his request to inspect certain records in your custody. Mr. Potter originally requested access to thirteen categories of documents and you allowed access to two categories of documents, denying access to the other eleven. Mr. Potter states that the eleven categories of documents denied are of four types, which are: (1) the contract between the Board and its attorney; (2) Board records of payments to its attorney; (3) bills and statements submitted to the Board by its attorney; (4) unprivileged communications between the Board and its attorney. Mr. Potter further classifies the documents as (a) documents relating to the fiscal arrangements between the Board and its attorney, and (b) other non-privileged communications.
You responded to Mr. Potter's request by letter dated January 28, 1982, granting access to two categories of documents and denying access to the other eleven categories of documents, basing your denial on KRS 61.878(1)(j) which exempts from public inspection certain public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. Your theory is that since the Jefferson County Public Schools are involved in litigation and the requested records would not be discoverable under the Rules of Civil Procedure, CR 26.02(1)(3), you do not have to make the records available to Mr. Potter or any other person. Mr. Potter appealed to the Attorney General by letter dated February 3, 1982, presenting arguments against your theory. Mr. Dan C. McCubbin, General Counsel of the Jefferson County Public Schools, filed a rejoinder to your arguments by letter dated February 12, 1982 and you submitted a surjoinder by letter of February 16, 1982. All of the arguments have centered around the questions of attorney-client privilege, attorney work product exemption from discovery and relevancy of the information contained in the documents under the rules of discovery.
Our opinion will be based on a theory other than those which have been argued or mentioned in the above described correspondence. We are entitled to do so because KRS 61.880(2) simply gives the Attorney General the responsibility of issuing "a written opinion to the agency concerned, stating whether the agency acted consistent with the provision of KRS 61.870-61.884", and we are not bound to any procedure of considering only the reason given by the agency.
OPINION OF THE ATTORNEY GENERAL
Although there is litigation in the background of the open records request under review, the requester, Mr. Potter, 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. The other side of the coin is, however, that if the Board of Education has any legal justification for keeping the records secret from any person, it may keep them secret from the general public. "A secret" is no secret if it is known to the general public. Records which are not discoverable because they are the work product of an attorney or for any other reason may be kept confidential by a public agency as long as litigation is pending, but, unlike a private individual, a public agency must allow inspection of those records once the litigation has been terminated.
Generally, the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law. In this instance, the Board of Education claims it will be disadvantaged in law suits involving price fixing and/or bid rigging if it has to make public the records which reveal the terms of employment of its lawyers and which would allow anyone to track the travels of its attorneys and investigators in interviewing witnesses and gathering evidence for the cases. The Board claims that since this information is not discoverable it should be allowed the same right to keep the information confidential even though it is a public agency as it would have if it were a private individual; that the defendants in the litigation should not be allowed to use the Open Records Law to find out such information as to whether the Board has employed its attorneys on a contingency basis and to what cities the Board's attorneys have traveled to collect evidence for the litigation. This argument suggested to us another exception to the requirement of mandatory public inspection in the Open Records Law, to wit, KRS 61.878(1)(f) which reads as follows:
"The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
'(f) records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870-61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870-61.884.'"
It is undisputed that the Jefferson County Board of Education has initiated civil litigation against certain contractors under the antitrust law. In addition, it is alleged that price fixing and bid rigging may be involved and if that is so, criminal felony prosecutions may eventuate under KRS 45A.325. We believe that, whether the litigation is civil or criminal, as long as it involves a public agency seeking to enforce the law in the public interest KRS 61.878(1)(f) exempts from mandatory public inspection any records which will reveal information which will hinder the agency in prosecuting the litigation. Once the litigation is completed, or otherwise terminated, the records should be made available for public inspection unless otherwise exempted by law.
It is our opinion that the contract or contracts between the Board of Education and its attorneys should be made available for public inspection. Although such a contract may not be discoverable under court rules, we believe contracts of public agencies must be openly made and available for inspection by the public. We do not see how knowledge of the terms of such contracts will hinder the agency in the prosecution of its law suits.
It is our opinion that the other three types of records which Mr. Potter requested to inspect as listed above need not be made available for public inspection except by order of a court of competent jurisdiction and that the Jefferson County Board of Education acted properly in denying inspection of said records.
You have the right to challenge any part of this opinion which you consider erroneous in court by filing suit within 30 days.
As directed by statute, a copy of this opinion is being sent to the requester, who has the right to challenge it in court under KRS 61.882.