Request By:
Mr. Alan Sisk
Personnel Coordinator
Lexington-Fayette Urban County Housing Authority
635 Ballard Street
Lexington, Kentucky 40508
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Catherine Stevens has appealed to the Attorney General, pursuant to KRS 61.880, your denial of her May 28, 1992, request to inspect certain records in the custody of the Lexington-Fayette Urban County Housing Authority. Those records are identified as:
1. The documents reflecting the educational and employment background of Mary Sundin, as well as the compensation at which Mary Sundin was hired as Assistant Manager, effective January 25, 1988. Such documents include, but are not limited to, application(s) for employment and resume (s);
2. The documents reflecting the reason that Mary Sundin ceased to be employed as Assistant Manager as of June 13, 1989;
3. The documents reflecting the reason that Constance Quinn ceased to be employed as Assistant Manager as of November 14, 1990;
4. The documents reflecting the educational and employment background of Vera Daugherty, as well as the compensation at which Vera Daugherty was hired as Assistant Manager II on March 18, 1991. Such documents include, but are not limited to, application(s) for employment and resume (s); and
5. The documents reflecting the name, race and educational and employment background of each person given a second interview for the vacancy at the level of Assistant Manager (Assistant Manager II), which existed in the latter part of 1990 and the early part of 1991 at the Housing Authority. Such documents include application(s) for employment and resume (s).
You denied Ms. Stevens' request in a letter dated June 4, 1992. Relying on KRS 61.878(1)(a), and OAG 77-394, OAG 79-275, OAG 87-37, and OAG 89-90, you maintained that the "documents contain information of a personal nature, including, but not limited to, information concerning applicants who were not hired by the Housing Authority, employee performance evaluations, and reasons for employees' termination of employment." In addition, you argued that the requested documents, among others, were the subject of a Motion for a Protective Order filed in response to an earlier Request for Production of Documents in an action currently pending in the United States District Court for the Eastern District of Kentucky, and were therefore exempted from disclosure pursuant to KRS 61.878(1)(i). We have been advised that the court entered that order on June 26, 1992.
In her letter of appeal to this Office, Ms. Stevens argues:
The fact that the documents I have requested to inspect are also the subject of a discovery dispute in a federal court action should have no bearing on whether my request is granted or denied. In OAG 89-79 it was held that the purpose of the person seeking inspection has no bearing on whether the request should be granted or denied.
She distinguishes OAG 89-90, noting that in that opinion this Office held that there could be no general denial of inspection of personnel records. In addition, she cites OAG 76-717, in which we stated that the public is entitled to know the name, position, and salary of a public employee.
Ms. Stevens asks that we review your response to her request for documents to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your response was consistent with the Act.
OPINION OF THE ATTORNEY GENERAL
This appeal presents a unique problem. Although Ms. Stevens' appeal was filed prior to entry of the protective order, that order was entered before the Attorney General had an opportunity to issue his opinion. We have previously recognized:
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 the Open Records provisions in accordance with KRS 61.880.
OAG 89-65, at p. 3. Additionally, however, we noted that in making such observation, we do not:
[S]uggest 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.
OAG 89-65, at p. 3.
In our view, prior to entry of a protective order, the Open Records Act operates independently of the rules of discovery, and may compel release of nonexempt documents. An agency may, of course, assert other grounds for nondisclosure in its response, or, upon issuance of an Attorney General's opinion requiring disclosure, initiate action in the appropriate circuit court to enjoin release of those documents. Here, however, a protective order was entered before the Attorney General undertook his review of this matter. Accordingly, the requested records are not subject to disclosure.
This Office has adopted the position of the federal courts relative to public records which have been placed under a court ordered seal of confidentiality. In OAG 80-353, OAG 89-22, and OAG 91-121 (copies enclosed), we addressed the question whether a public agency is required to disseminate to the public, records which a court has placed under such a seal, answering in the negative. In OAG 89-22, at p. 3, we reasoned that if an agency is a party to the litigation, and the requested documents come within the purview of the protective order, the agency and its employees "may be in contempt of court and subject to other civil liability if they release the documents in question." 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). The Open Records Act in no way supersedes a protective order entered by a court of competent jurisdiction when a public agency is properly before the 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. We therefore find that the Housing Authority properly denied Ms. Stevens' request.
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 63 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 Housing Authority may properly withhold the requested documents as required by the district court's protective order.
Because we believe that the Housing Authority is required to obey the district court's protective order out of deference to the judicial process, we need not address the issue whether the requested records are also exempt from inspection under KRS 61.878(1)(a), pertaining to "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Catherine Stevens. Ms. Stevens may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).