Request By:
Mr. John Fritz
262 Kalmia Avenue, #12
Lexington, Kentucky 40508
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
You have requested that this office issue an opinion as to whether the Kentucky Bar Association is a "public agency" within the meaning of the Open Records Act, KRS 61.870 - 61.884. This question arises from your request to inspect certain records pertaining to the Swinford Lecture Series presented by the University of Kentucky College of Law, and subsidized by the Kentucky Bar Association. By letter dated August 20, 1990, you requested access to certain checks, some identified by check number, remitted by the KBA to the University of Kentucky". . . to compensate the University of Kentucky for the KBA's share of expenses incurred during the Judge Mac Swinford Lecture in Law . . . ." In a subsequent letter, dated December 10, 1990, you requested access to "[a]ll letters, memos, notes, phone messages, minutes and correspondence from Hon. Antonin Scalia . . ." to the KBA's staff, as well as any such documents from the staff to Justice Scalia.
Mr. Bruce Davis, Executive Director of the Kentucky Bar Association, responded to your first request on August 23, 1990. Although it was his position that the KBA might be exempt from the provisions of the Open Records Act, insofar as it receives no state funds, he indicated his willingness to provide you with copies of the requested checks, at no charge. He noted that there might be a delay in forwarding the checks to you owing to the relocation of the KBA Financial Administrator's office.
On December 14, 1990, Mr. Davis responded to your request to inspect any letters, memos, notes, phone messages, minutes and correspondence exchanged by Justice Scalia and the KBA. Reterating his doubts as to the applicability of the Open Records Act, he stated that the KBA was not in possession of any such documents, and advised you to contact the UK College of Law, to which he assumed such correspondence, etc. was directed.
By letter dated February 18, 1991, and received in this office on February 22, 1991, you requested that we review this issue and determine if the KBA is a "public agency" within the meaning of KRS 61.870(a). You argue that the KBA is a "public agency" because it ". . . derive[s] [its] income from a tax . . .," that "tax" being the mandatory dues collected from licensed attorneys. It is your position that the KBA has acted in a manner inconsistent with the provisions of the Act.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that the KBA is not a "public agency" within the meaning of the Open Records Act, and that your request might properly have been denied. Section 116 of the Kentucky Constitution vests in the Supreme Court the power to ". . . by rule, govern admission to the bar and the discipline of members of the bar." The Court has done so in Supreme Court Rule 3.025, by which the Bar Association is established ". . . to maintain a proper discipline of the members of the bar . . . and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the Court, appropriate means to insure a continuing high standard of professional competence . . . ."
This office has previously opined that § 116 completely removes the Kentucky Bar Association from any legislative authority. OAG 81-41. Citing the Kentucky Supreme Court's opinion in Ex parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980), the Attorney General noted that the judicial branch, of which the Bar Association is a part, has exclusive authority to manage its own affairs. It is instructive to quote from the Supreme Court's opinion Ex parte Auditor at length:
Both the [Bar] Association and the Board of Bar Examiners exist solely by virtue of rules of this court expressly and exclusively authorized by Const. Sec. 116. There is no constitutional authority by which they can be made accountable to either of the other two branches of government except for their stewardship of such funds or property as may come into their possession through these sources. Neither of those agencies has any such funds or property. Their funds and property are public funds and property because their official functions are entirely public in nature, but their accountability is to this court only, of which they are an integral part.
609 S.W.2d at 686.
This position is consistent with an earlier published opinion of this office in which we stated that the KBA is not a "state agency" for purposes of conducting a state audit. OAG 80-393. Although the question raised did not involve Open Records, the Attorney General concluded that ". . . the Kentucky Bar Association is clearly not a department, board, commission, institution or division of state government . . . ." The opinion cites Section 116 of the Constitution for the proposition that the Supreme Court is empowered to prescribe rules of law, practice and court procedure, and notes that nothing in that section can be construed to suggest that the KBA is a statutory agency.
This position is also consistent with other opinions of the Attorney General's office dealing with Open Records appeals from decisions of the Board of Bar Examiners. In OAG 79-174 and OAG 85-9, this office upheld the denial of requests for information pertaining to the bar examination, stating that all records maintained by agencies of the court, including the Board of Bar Examiners, 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. We adopted the position of the Supreme Court in Ex parte Farley, Ky., 570 S.W.2d 617 (1978), quoting liberally from that opinion:
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 - 26.200, incl. (Ch. 22, Acts of 1976 Ex. Sess.), we need not decide, because we are firmly of the opinion that the custody and control of the records generated by the court in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.
570 S.W.2d at 624 cited in OAG 85-9. Nevertheless, the court voiced its willingness to conform to the policies of the Open Records Act, as a matter of comity, where it does not conflict with the ". . . orderly conduct of [its] business." 570 S.W.2d at 625.
Inasmuch as the KBA and the Board of Bar Examiners are creatures of the Court and the Constitution, and not statutory creatures, they are not subject to the Open Records Act, and cannot be considered "public agencies" within the meaning of the Act. As noted in the cited opinions, if a requesting party is aggrieved by denial of a record maintained by the court, or an agency of the court, they must take their appeal to the Chief Justice.
Assuming arguendo, that the KBA is subject to the Open Records Act, your request might have been denied in any event inasmuch as KRS 61.878(1)(j) exempts from public inspection, "Public records or information the disclosure of which is prohibited or restricted or otherwise mase confidential by enactment of the General Assembly." As previously indicated, court records are given a special status under KRS 26A.200 and 26A.220, and are exclusively governed by the Court of Justice. OAG 78-262; OAG 79-174; OAG 85-9. In OAG 78-262, this office expressly opined, "The legislature has clearly placed in the hands of the Chief Justice the handling and regulations of the records of the courts." These statutes apply to all records of agencies of the court and the KBA is an agency of the court created and supervised by it.
It should be noted that despite Mr. Davis' doubts as to the applicability of the Act, it appears that he affirmatively responded in a timely fashion. In a telephone conversation, he confirmed that every effort was made to locate and copy, free of charge, the requested documents. He further confirmed that the Bar Association simply did not have in its possession some of the requested documentation, and again stated, as he had in his letter to you, that the request should be directed to the University of Kentucky College of Law, which organizes the event.
It is therefore the opinion of the Attorney General that the custody and control of the records of the KBA are not subject to statutory regulation. Further, it is our opinion that the KBA nevertheless attempted to comply with the spirit of the Open Records Act in its willingness to provide access to whatever documentation was in its possession.