Request By:
Dr. Jack C. Blanton
Vice Chancellor for Administration
and Official Records Custodian
University of Kentucky
110 Administration Building
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
James L. Thomerson, Esq., has appealed to the Attorney General pursuant to KRS 61.880, on behalf of his client, the Lexington Herald Leader Company, your partial denial of a request to inspect certain documents.
In a hand delivered letter, dated June 8, 1988, Mr. David Green, the newspaper's city editor, requested that you provide him with copies of the following documents:
"1) All correspondence with the National Collegiate Athletic Association, since and including June 2, 1988. This request includes correspondence from both the NCAA and the University.
"2) Copies of all depositions taken in connection with an investigation of UK basketball and resulting legal proceedings.
You replied to Mr. Green in a letter dated June 13, 1988, and advised him as follows:
"(1) To the extent such documents exist and are known to us, copies are hereby furnished.
"(2) The depositions taken by James Park in the matter of Coach Casey v. Emery Air Freight are not in the possession of or retained by the University. Hence, they will not be furnished."
In his letter of appeal to the Attorney General, Mr. Thomerson maintains in part that your response does not satisfy the terms and provisions of the Open Records Act. It fails to state a basis upon which access to the documents requested may be denied. He further alleges that the depositions are public records pursuant to KRS 61.870(2) even if they are not in the possession of the University. If the depositions have not yet been transcribed, a copy should be made available when that task has been completed. An agency cannot avoid the requirements of the Open Records Act by placing or maintaining public records with third parties.
The undersigned Assistant Attorney General talked by telephone with the University's General Counsel, John Darsie, Esq., on July 8, 1988. He said that the University of Kentucky Athletics Association, a nonprofit corporation established to operate the school's athetic programs, contracted with James Park, Esq. for various legal services and legal representation related to the University's basketball program. Mr. Park's investigation, studies and activities have not yet been completed and a report will be submitted at the conclusion of his efforts on behalf of the Athletics Association.
As a part of the services rendered, Mr. Park took some depositions pertaining to Assistant Basketball Coach Casey and the Emery Air Freight Company. Since Mr. Casey's attorney had publicly stated that law suits against various parties and entities, including the University, were a distinct possibility, Mr. Park obtained permission from a federal district judge to take the depositions in question. The depositions were taken, in order to protect testimony, by a party who may at some point be the target of a lawsuit. The depositions will probably be filed with the federal court if any aspect of the matter involving Coach Casey and Emery Air Freight is litigated. The depositions in question are not and never have been in the possession on the University of Kentucky.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1), in setting forth the duties of a public agency in regard to its response to a request to inspect public records, provides in part that, "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."
In the opinion of this office your letter of June 13, 1988, to Mr. Green does not satisfy the requirements of KRS 61.880(1) pertaining to the response of a public agency to a request to inspect documents. Furthermore, a copy of that letter was not forwarded to this office as required by KRS 61.880(2). Hopefully, the public agency in its future responses to requests to inspect documents will comply with the requirements of KRS 61.880(1) and (2).
The depositions in this situation were undoubtedly taken pursuant to Rule 27 of the Federal Rules of Civil Procedure, "Depositions Before Action or Pending Appeal." While this office has not dealt previously with depositions taken under the Federal Rules, one prior opinion has been issued in regard to depositions taken under the Kentucky Rules of Civil Procedure.
In OAG 80-353, copy enclosed, one issue presented was whether depositions taken in a civil lawsuit were open for public inspection. In that opinion this office said in part that such a matter is governed by the Kentucky Rules of Civil Procedure and not by the Kentucky Open Records Act or the Open Meetings Act. The purpose of a deposition, generally, is to discover evidence pertaining to a matter in litigation or to preserve evidence to be presented at the trial, or both. A deposition is not a proceeding in open court and after the deposition has been taken and transcribed, the officer taking the deposition files it with the court. Unless the court has ordered the deposition to be sealed it may be inspected by the public after it has been filed.
See also KRS 26A.200 and KRS 26A.220 and Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), to the effect that records of the Court of Justice are not subject to the terms and provisions of the Open Records Act (KRS 61.870 to KRS 61.884).
In the situation with which we are concerned the private attorney with whom the Athletics Association had contracted obtained permission from a federal district judge, pursuant to the Federal Rules of Civil Procedure, to take the depositions of certain persons to preserve their testimony. While the Athletics Association is apparently not yet a party to a suit involving the subject matter of these depositions, it expects to be a party or involved in such matters in the near future and will file the depositions at that time. In any event, the proceedings pertaining to the taking of the depositions are governed by the Federal Rules of Civil Procedure.
Thus, in conclusion, the decision of the public agency to refuse to make available for public inspection at this time copies of depositions taken by a private attorney under the authority of the Federal Rules of Civil Procedure is not a violation of the Kentucky Open Records Act as the matter is governed by the terms and provisions of those federal rules and the interpretation of those rules by the federal courts.
As required by statute a copy of this opinion is being mailed to the appealing party, James L. Thomerson, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.