Request By:
Open Records Appeal
File Identification No. 90-391
William S. Blakeman, Editor
The Winchester Sun
P.O. Box 4300
Winchester, Kentucky 40391Mr. Ed Burtner, City Manager
City of Winchester
City Hall
Winchester, Kentucky 40391
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of February 28, 1990, William S. Blakeman, the Editor of The Winchester Sun, has appealed to this office regarding your February 23, 1990 response to his request of February 21, 1990, to inspect all documents relating to the February 19 (1990) settlement of the legal action of Kenneth Blair against the City of Winchester.
KRS 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one whose request to inspect a public record has been denied, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions.
FINDINGS IN BRIEF
The City of Winchester failed to act consistent with Open Records provisions in responding to a request to inspect records, regarding settlement of a civil suit against the city, by indicating that the city manager possessed only one document, and without addressing records within the scope of the request that were, or may have been, possessed by the city generally. Records in the possession of a public agency, setting forth amounts paid or payable in settling a suit against the agency, are subject to public inspection.
FACTUAL BACKGROUND
By letter dated February 21, 1990, William S. Blakeman, the Editor of The Winchester Sun, asked to inspect:
. . . [A]ll documents relating to the Feb. 19 settlement of the legal action of Kenneth Blair against the City of Winchester.
We specifically request . . . to see that portion of the records reflecting the actual monetary settlement.
Mr. Blakeman's request indicated that because the settlement represents the expenditure of public monies, the paper believed the public is entitled to know the details of the settlement.
By letter of February 23, 1990, you responded to Mr. Blakeman's request stating:
Your request is granted. Attached is a copy of the only document in my possession; the original is on file in the Clark Circuit Court. The Police and Fire Pension Board is a separate, autonomous Board. I have no control over their records.
[Emphasis added.]
Attached to your response was a copy of an Agreed Order of Dismissal, regarding a case in Clark Circuit Court, Division II, Action No. 85-CI-018, styled Kenneth Blair v. City of Winchester. Such document did not reflect the "actual monetary settlement" sought by Mr. Blakeman's request.
Mr. Blakeman's appeal asks (1) whether the paper is entitled to see the details of the settlement, (2) whether documents related to the case which are in the custody of the city's attorney are public record, and (3) whether the city is absolved of responsibility to disclose details of a settlement if the settlement was paid by its insurer when fees for the insurance were paid from public funds.
By letter of March 7, 1990, you advised this office that you had not forwarded to this office, a copy of your response to Mr. Blakeman's request, because your response to him was not a denial. You further indicated, in part, that the City's position was very simple:
The Order attached to the February 23 response is the only document that I, as official records custodian, have in my possession or under my control. Any document Mr. Blakeman wants to view of the Police and Fire Pension Board should be directed to the President of that separate entity.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) 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 you promptly responded, in writing, to a request to inspect public records, indicating that the request was granted, but that only one document was in your possession. You indicated the original of that document was on file in the Clark Circuit Court, and that you had no control over records of the Police and Fire Pension Board, which, you indicated, was a separate, autonomous Board.
We view the The Sun's request as requesting all records of the City of Winchester regarding the settlement in question, not just records in your possession. Your response must be taken as that of the City of Winchester. It did not address inspection of the various records which the city presumably has, or might have, in relation to the settlement of the case in question. For example, the city presumably has, even if it is in the custody of the city's counsel for the case in question, a copy of the settlement here involved [an article that appeared in The Winchester Sun on February 21, 1990, indicates [at page 10] that the attorney for the City had a copy of a document indicating an amount to be paid in settlement on behalf of the City of Winchester]. Your response addressed records in your possession, and not those in the possession of the City of Winchester generally. Where the response on behalf of the City addressed only records in the possession of the city manager, and not the City as an agency, the response was not consistent with KRS 61.870 to 61.884, and in particular, KRS 61.880(1) (above).
Previous opinions of this office have found that settlements of a civil suit by a city are subject to full public disclosure. See Opinion of the Attorney General (OAG) 78-35, and OAG 88-43 (copies attached). We follow those opinions here. And see, Courier Journal v. McDonald, Ky., 524 S.W.2d 633, at 635 (1974):
Certainly the payment of city funds in settlement of a suit against the city and some of its officers, based on negligence or misconduct in the performance of duty 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.
If the City of Winchester has a record or records setting forth monies paid on behalf of the city of Winchester in settling the suit in question, such record should be promptly made available for the Sun's inspection. This view applies to any record of such nature in the possession of the attorney for the City of Winchester, that would be considered a record of the City of Winchester, though held by counsel.
If the City of Winchester has records regarding settlement of the suit in question, other than one setting forth the amount of monies paid on behalf of the city in settling the suit in question, the city should, in a written response to Mr. Blakeman, itemize which records it has. If it denies inspection of any of such "other" records, it should state a specific basis for denial based upon the exceptions set forth in KRS 61.878.
If the City of Winchester has no record setting forth the amount of the settlement paid or payable to Mr. Blair, it should specifically so state, vis-a-vis Winchester city government as a whole, and not just in relation to a record in the possession of the city manager.
Concerning specific questions posed by Mr. Blakeman, (itemized in the factual background set forth above), records in the possession of the City of Winchester's insurance company are not reachable under Open Records provisions. Answers to other questions posed by Mr. Blakeman are encompassed by our findings above.
The City of Winchester 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. William S. Blakeman.