Request By:
Mr. Robert Best, Superintendent
Water and Wastewater
City of Elizabethtown
P.O. Box 550
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of October 2, 1989, Mr. Richard M. Sullivan, Esq., has appealed, under Open Records provisions, what he indicates, in substance, was a lack of response to an Open Records Request that was hand-delivered to the Elizabethtown Wastewater Treatment Facility on August 22, 1989.
FINDINGS IN BRIEF
Agency failed to act consistent with Open Records provisions in not responding to a request to inspect its records, in keeping with KRS 61.880(1) and (2); pendency of litigation does not suspend application of independent statutory requirement that response be made to a request to inspect records held by a public agency. Open Records provisions should not be used as a substitute for discovery under Civil Rules where litigation is involved.
FACTUAL BACKGROUND
As understood from Mr. Richard M. Sullivan's letter of October 2, 1989, to the Attorney General, requesting an opinion under Open Records Provisions, together with attachments thereto, a request for records was tendered to the Elizabethtown Water and Wastewater agency on August 22, 1989, and no response to such request was made by the agency.
By letter of September 25, 1989, Mr. Kenneth Bohnert, wrote you indicating no response had been received to the August 22, 1989 request, pointed out the response requirement of KRS 61.880, and asked you to advise on the status of the request.
By letter of September 29, 1989, Mr. J.M. Collier, evidently representing the City of Elizabethtown, wrote Allan Dodd III, apparently in relation to the September 25, 1989 letter of Mr. Bohnert. In substance, Mr. Collier, indicated inspection of the records in question had been previously permitted, that how the existence of litigation affected the ordinary rules [presumably meaning under Open Records provisions] regarding inspection had not been answered [apparently the question has been raised in court], and making suggestions regarding access to records by what evidently is each side in existing litigation.
By letter of October 2, 1989, Mr. Sullivan, on behalf of Flint Ink, Incorporated, and Chromatic Color, Incorporated, asked for an opinion under Open Records provisions regarding the lack of response to the request of August 22, 1989.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880 provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, it appears the Elizabethtown Water and Wastewater agency, a public agency within the meaning of KRS 61.870(1), did not respond in keeping with KRS 61.880(1) and (2), to a request to inspect the agency's records. Accordingly, the agency failed to act consistent with provisions of KRS 61.870 to 61.884.
Mr. Collier's letter of September 29, 1989, to Allen Dodd III, that was included in the materials sent to this office in connection with this appeal, mentions the existence of litigation, apparently involving, in part, records sought by the request of August 22, 1989, supra. Mr. Collier indicates the question of the effect of the presence of litigation on normal rules of inspection has not been answered.
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880. We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. 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 procedures.
The Elizabethtown Water and Wastewater agency should promptly respond to Mr. Sullivan, advising when records sought by the request of August 22, 1989 will be made available for inspection. If any records are withheld, the basis for withholding them must be explained in keeping with the requirements of KRS 61.880(1).
Your agency may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Richard M. Sullivan.