Request By:
Ms. Kathryn R. Matheney
Department of Law
Natural Resources and Environmental Protection Cabinet
Capital Plaza Tower, 5th Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Dennis J. Conniff has appealed to this Office pursuant to KRS 61.880 your denial of his May 30, 1991, request to inspect a document which he believes to be in the possession of the Natural Resources and Environmental Protection Cabinet. He identifies that document as the "Mitchell contract" to which reference is made in Condition No 4 of the solid waste disposal facility permit issued by the Cabinet on January 1, 1991, to Valley View Landfill, Inc. That permit is the subject of a lawsuit now pending in the United States District Court for the Eastern District of Kentucky.
You denied Mr. Coniff's request in a letter dated June 4, 1991, relying on KRS 61.878(l)(i) and 61.878(l)(f). Noting that the "Mitchell contract" is not a public record within the meaning of KRS 61.870(2), since it has "never been released to the Division of Waste Management of the Natural Resources and Environmental Protection Cabinet," you advised Mr. Conniff:
The only known copy of the Mitchell contract is a copy which is in my possession pursuant to a discovery request made in the course of litigation in the United States District Court . . . . In order to obtain a copy of this contract through discovery, the parties to the lawsuit signed an Agreed Protective Order on March 20, 1990 . . . Pursuant to that Order, I have agreed that the Mitchell contract would not be released. Therefore, I am unable under federal law to release this document. Thus, the document is not subject to production under KRS 61.878(i) [sic] [which permits an agency to withhold '[a]ll public records or information the disclosure of which is prohibited by federal law or regulation.']
In addition, you expressed the belief that KRS 61.878(1)(f) authorizes nondisclosure of the "Mitchell contract."
In his letter of appeal to this Office, Mr. Conniff argues that the Cabinet's reliance on KRS 61.878(1)(i) is misplaced, commenting:
No federal law requires that the 'Mitchell contract' be prohibited from disclosure, and the Cabinet relies upon no such law. Instead, the Cabinet attempts to concoct an argument based upon the fact that a protective order has been entered in Federal court prohibiting the disclosure of this document. While on its face such an argument might conceivably fall within the provisions of KRS 61.878(1)(i), the Cabinet totally ignores the fact that that protective order was entered by agreement. An agency of state government should not be allowed to rely upon and incorporate a document into a permit, and then agree to withhold the document from public disclosure . . . The agreement of the agency to withhold such information is patently contrary to the spirit and intent of the Open Records law.
He also notes that the Cabinet's invocation of KRS 61.878(1)(f) is improper insofar as you failed to offer any explanation as to how this exemption applies to the "Mitchell contract." Finally, he takes issue with your assertion that the requested document is not a public record, noting that since you, as counsel for the Cabinet, have obtained a copy of the contract in the course of discovery, it is, in fact, in the possession of the Cabinet.
Mr. Conniff asks that we review the Cabinet's denial of his request to determine if your action was consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied his request.
OPINION OF THE ATTORNEY GENERAL
This office has previously addressed the question raised in this appeal, to wit:
Pursuant to KRS 61.870, et seq., is a public agency required to disseminate to the public records which a court has placed under a seal of confidentiality when the person requesting such records was not a party to the litigation?
OAG 89-22, at p. 2. In OAG 89-22, we answered that question in the negative, reasoning that if an agency is a party to the litigation, and the requested document comes within the purview of the protective order, the agency and any of its employees "may be in contempt of court and subject to other civil liability if they release . . . the documents in question." OAG 89-22, at p. 3; see also, OAG 80-353 (holding that a court order sealing a deposition makes the deposition unavailable for public inspection, the Open Records Act notwithstanding). Clearly, the Open Records Act in no way supercedes a protective order entered by a court of competent jurisdiction when a public agency is properly before that court as a party to the litigation. Indeed, the entry of a protective order removes a document within its terms from the application of the Act. An agency need not invoke an exception to the Act to authorize nondisclosure. We therefore find that Mr. Conniff is in error in assuming that an agency can flout a protective order by releasing a document which falls within its purview upon receipt of an Open Records request for the document. We are not persuaded that that order is of any less validity because it was entered into by agreement of the parties.
This position is consistent with a line of authority extending from the United States Supreme Court to the Sixth Circuit Court of Appeals. Although those courts have reached similar conclusions in interpreting the federal Freedom of Information Act, 5 USCS § 552, we believe their opinions to be instructive in, though not dispositive of, an Open Records appeal. In GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., et al., 445 U.S. 375, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980), the Supreme Court held that agency records which were subject to a federal district court injunction preventing disclosure, were not obtainable under the Freedom of Information Act. The Court opined:
There is nothing in the legislative history to suggest that in adopting the Freedom of Information Act to curb agency discretion to conceal information, Congress intended to require an agency to commit contempt of court in order to release documents. Indeed, Congress viewed the federal courts as the necessary protectors of the public's right to know. To construe the lawful obedience of an injunction issued by a federal district court with jurisdiction to enter such a decree as 'improperly' withholding documents under the Freedom of Information Act would do violence to the common understanding of the term 'improperly' and would extend the Act well beyond the intent of Congress.
GTE Sylvania , at L. Ed. 2d 478.
Similarly, in Wager v. United States Department of Justice, 846 F.2d 1040 (6th Cir. 1988), the Sixth Circuit Court of Appeals held that a nondisclosure order in an antitrust proceeding precluded the Department of Justice, a party to the proceedings, from releasing documents sought by a reporter under the Freedom of Information Act. Adopting the reasoning of the GTE Sylvania case, the court concluded that courts may issue nondisclosure orders and agencies must comply with such orders in spite of the Freedom of Information Act. As noted, this conclusion also finds firm support in our own earlier opinions. Accordingly, we hold that the Cabinet properly withheld the "Mitchell contract" as required by the district court's protective order.
Because we believe the Cabinet was required to obey the district court's protective order of deference to the judicial process, we need not address the issue whether the requested records were also exempt from inspection under KRS 61.878(1)(f), pertaining to "[r]ecords of law enforcement agencies or agencies involved in adminstrative adjudications that were compiled in the process of detecting and investigating statutory or regulatory violations . . . ." We note in passing, however, that the Cabinet failed to offer any explanation as to how that exception applies to the records requested in violation of KRS 61.880(1), and that its response was, to that extent, deficient.
We also note that the Cabinet's assertion that the "Mitchell contract" is not a public record, since it would not have been released to the agency absent discovery, is not without merit. Although the Office adopted a broad definition of the term "public records" in OAG 89-7 and OAG 91-70, the federal courts have indicated that it is unclear whether "private records which coincidentally [come] into the possession of . . . [an agency] for the limited purposes of discovery" are agency records within the meaning of the Freedom of Information Act. United States v. Kentucky Utilities Co., 927 F.2d 252, 254 (6th Cir. 1991). In Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978), cert. den. 445 U.S. 927, 63 L.Ed2d 759, 100 S. Ct. 1312 (1980), the Court of Appeals for the District of Columbia observed, with reference to congressional records exempt under the federal Act:
An agency's possession of a document, standing alone, no more dictates that it is an 'agency record' than the congressional origins of a document, standing alone, dictate that it is not. Whether a congressionally generated document has become an agency record, rather, depends on whether under all the facts of the case the document has passed from the control of Congress and become properly subject to the free disposition of the agency with which the document resides.
Mere possession of a record, at least for purposes of the federal Act, is not enough to warrant its characterization as a "public record. "
We are aware that the basic policy of the Open Records Act mandates free and open examination of public records, and note that some courts which have been called upon to address the questions raised on this appeal have indicated that before records are sealed, the press and the general public should be afforded a reasonable opportunity to state their objections to a protective order. In re Knoxville News-Sentinel Company, Inc., 723 F.2d 470, 474 (6th Cir. 1983). This view comports with a generally recognized right of public access to court records which can be traced to the Nineteenth Century. Ex Parte Drawbraugh, 1 App. D.C. 404 (1894), cited in In Re Knoxville News-Sentinel Company, Inc. , at 474.
It is not the duty of the Attorney General, however, to review the actions of the district court in issuing a protective order, or the actions of an agency in issuing a permit. This Office is charged with the duty of reviewing agency action in responding to a request for public records to determine if it was consistent with the Open Records Act. For the reasons outlined above, we conclude that the Cabinet properly denied Mr. Conniff's request.
As required by statute, a copy of this opinion will be sent to the requester, Mr. Dennis J. Conniff, who may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).