Request By:
Mr. James D. Lawson
Executive Secretary
Judicial Retirement and Removal Commission
Post Office Box 21868
Lexington, Kentucky 40522-1868
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. John Fritz has appealed to the Attorney General pursuant to KRS 61.870 et seq ., the Open Records Act, your denial of his request to inspect certain records containing the names of the members of the Judicial Retirement and Removal Commission who reviewed and voted on the complaints he filed against two Kentucky judges, including the name of the individual who substituted for an absent member, as well as the minutes of the meeting at which the complaints were considered. Mr. Fritz made his request on November 19, 1990. You responded on December 12, 1990. In your letter, you advised Mr. Fritz that the JRRC would not honor his request inasmuch as ". . . Supreme Court Rule 4.130 requires that all matters before the Commission be kept confidential. "
In his letter of appeal to this office, Mr. Fritz argues that the records sought are public in nature, because they contain "statistical" data, and that their release is required by federal law. It is his position that the JRRC's denial of his request constitutes a violation of the First, Fifth, Ninth and Fourteenth Amendment of the United States Constitution.
The JRRC responded to these charges in a letter dated March 1, 1991, and authored by Mr. Joe C. Savage, Chairman. Mr. Savage argues on behalf of the JRRC that the records of the Commission are not subject to the Open Records Act because it is ". . . an organization of the judicial branch . . ." created under the authority of Section 121 of the Constitution and responsible to the Court of Justice. He maintains that the records generated by JRRC are the property of the Court, pursuant to KRS 26A.200, and that KRS 61.870 - 61.884 do not apply to such records, citing the Supreme Court's opinion in Ex parte Farley, Ky., 570 S.W.2d 617 (1978).
In a second letter, Mr. Fritz asked that this office issue an opinion as to whether the JRRC could properly withhold the records relating to his complaint when the requestor was the complainant, a Commission member was absent and an unknown individual substituted for him, and the matter had been concluded at the time the request was made. Again, he argues that nondisclosure violates the First, Fifth, Ninth and Fourteenth Amendment. Because our opinion in this Open Records appeal disposes of all significant issues raised, we do not believe it necessary to respond to Mr. Fritz's second request, and therefore respectfully decline to do so. KRS 15.025(4).
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this office that the Open Records Act does not apply to Mr. Fritz's request for documents containing the names of the members of the Commission who considered his complaints. Nor does the law apply generally to records generated by the JRRC inasmuch as the Commission is an agency of the Court of Justice, created under authority of the Kentucky Constitution and Supreme Court Rule. As this office has previously opined, adopting the rule announced by the Supreme Court in Ex parte Farley, supra, records of the court and agencies of the court enjoy a special status and are placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.200 and KRS 26A.220. OAG 78-262; OAG 79-174; OAG 85-9. Accordingly, Mr. Fritz's request was properly denied.
In Farley, supra at 624, the Supreme Court observed:
On its face, the Open Records Law, KRS 61.870 - 61.884, incl. (Ch. 273, Acts of 1976), appears to apply. Whether its provisions conflict with or are harmonious with KRS 26A.200 - 26A.220, inc. (Ch. 22, Acts of 1976 Ex. Sess.), we need not decide, because we are firmly of the opinion that the custody and control fo the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.
The JRRC is an integral part of the judicial department of the state. Section 121 of the Kentucky Constitution directs the creation of a judicial retirement and removal commission composed of one judge of the Court of Appeals, one circuit judge, one district judge, one member of the bar, and two lay people. Supreme Court Rule 4.000 et seq . prescribes its jurisdiction, powers, and the procedures by which it operates. Its mission is similar to that of the Kentucky Bar Association: To regulate ". . . the conduct of those persons charged with the administration of justice . . . [and] . . . to improve the quality of justice administered within the Commonwealth . . . ."
Nicholson v. Judicial Retirement and Removal Commission, Ky., 562 S.W.2d 306, 308 (1978). Clearly, the Commission, its members and employees are part and parcel of the Court, and its records are "inseparable from the judicial function. "
Insofar as it derives its funding from the state treasury, KRS 34.320, is governed by statute, KRS 34.310 - 34.340, and has been deemed a "state body," Const. § 121, it would appear that the JRRC is a "public agency, " as that term is defined in the Open Records Act. KRS 61.870(1). Nevertheless, under the rule announced in Farley, supra at 625, it is exempt from the Open Records Act to the extent that the Act is " . . . inconsistent with the orderly conduct of [the court's] business." The custody and control of records maintained by the JRRC, including those containing the names of the members of the Commission who heard Mr. Fritz's complaints, is vested in the Supreme Court. Accordingly, if a requestor is aggrieved by the denial of a record generated by the court, or an agency of the court, he must take his appeal to the Chief Justice. OAG 79-174; OAG 85-9.
In the alternative, Mr. Fritz's request for records containing the names of the Commission members might have been denied under the exception codified at KRS 61.878(1)(j). That provision exempts from inspection, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." As previously noted, court records are given a special status under KRS 26A.200 and 26A.220 and are placed under the exclusive jurisdiction of the Court of Justice. OAG 78-262; OAG 79-174; OAG 85-9. "The legislature has clearly placed in the hands of the Chief Justice the handling and regulation of the records of the courts." OAG 78-262. These statutes apply to all records of agencies of the court, and the JRRC is an agency of the court created and supervised by it.
With respect to Mr. Fritz's request for access to the minutes of the meeting at which his complaints were considered, we again conclude that the request was properly denied. We believe that the JRRC is not required to disclose the minutes of the meeting because it is clearly not a "public agency" within the meaning of KRS 61.805(2), the Open Meeting Act, and is therefore not bound by KRS 61.835.
KRS 61.805(2) defines a "public agency, " for purposes of the Open Meetings Act, as:
. . . [A]ny state legislative, executive, administrative or advisory board, commission, committee, policy making board of an institution of education or other state agency which is created by or pursuant to statute or executive order ( other than judicial or quasi-judicial bodies ); . . .
(Emphasis added.) This is a narrower definition of the term than that contained in the Open Records Act, which is found at KRS 61.870(1), and specifically excludes judicial or quasi-judicial bodies.
As we have discussed in some detail above, the JRRC is an agency of the court, created under authority of Section 121 of the Kentucky Constitution and Supreme Court Rule 4.020. It "examin[es] specific complaints of judicial misconduct, determining their relation to a judge's fitness for office." Nicholson, supra at 308. It is a quasi-judicial body expressly exempted from the provisions of the Open Meetings Act and is not bound by KRS 61.835, which requires disclosure of the minutes of meetings held by public agencies. Because it is not a "public agency" as that term is defined in the Open Meetings Act, we believe that the JRRC properly denied Mr. Fritz's request for access to the minutes of the meetings at which his complaints were considered
Therefore, the JRRC's denial of Mr. Fritz's request was proper. Because it is not a "public agency" within the meaning of KRS 61.805(2), it is not required to disclose the minutes of its meetings pursuant to KRS 61.835. Nor is the Commission required to permit inspection of records containing the names of its members who considered his complaint under the rule announced in Ex parte Farley , and alternatively, under KRS 61.878(1)(j). It is our opinion that Mr. Fritz should apply to the Chief Justice for information concerning the Court's policy of handling such requests. He is so advised by being sent a copy of this opinion and he has the right to challenge it in court pursuant to KRS 61.880(5).