Request By:
Mr. Robert P. Hammons, City Attorney
Leick, Hammons & Brittain
First National Bank Building
Main Street
P.O. Box 1388
Corbin, Kentucky 40702
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. David O. Smith has appealed to the Attorney General, pursuant to KRS 61.880, your denial of his February 25, 1992, request to inspect "the settlement agreement approved by the Whitley Fiscal Court and the two newspapers publishing in Whitley County, Kentucky." Mr. Smith explains that Whitley County filed an action in circuit court to determine which newspaper had the largest circulation for purposes of legal publications. Prior to reaching this determination, the parties entered into a settlement agreement, the terms of which were adopted as the judgment of the court in its order of dismissal. The court further ordered that the terms of the agreement remain confidential and that it be sealed in the record. A copy of the order, entered by the Whitley Circuit Court on March 6, 1992, is attached to the appeal. Mr. Smith argues that he has thus been "denied access to a public record detailing how county and court funds are expended for legal publications in the newspaper of largest circulation in Whitley County. . . ."
You denied Mr. Smith's request in a letter dated March 19, 1992. Citing the court's order of dismissal, you advised him that "the only way Whitley County can disclose this Agreement is by order of Court."
Mr. Smith asks that we review your denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your response, although procedurally deficient, was otherwise consistent with the Act.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. 1
Your response to Mr. Smith's request was procedurally deficient insofar as it was not issued within three working days. Some eighteen working days elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. Additionally, you failed to forward a copy of the denial to this Office. We urge you to review the cited provisions to insure that future responses conform to the Open Records Act.
Turning to the substantive issues raised in this appeal, we find that you properly denied Mr. Smith's request. Although this Office has consistently recognized that records reflecting settlements of civil suits by public agencies are subject to full disclosure, OAG 78-35; OAG 88-43; OAG 90-36; OAG 91-20; OAG 92-17, we have also recognized that public records which have been placed under a court ordered seal of confidentiality may not be disseminated to the public. OAG 80-353; OAG 89-22; OAG 91-121. 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 supercedes an 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 such an order removes a document within its terms from the application of the Act. We therefore find that the City of Corbin properly denied Mr. Smith's 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 City of Corbin may properly withhold the requested documents as required by the district court's protective order.
It is the opinion of this Office that the City of Corbin is required to obey the circuit court's order sealing the settlement agreement out of deference to the judicial process.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. David O. Smith. Mr. Smith and the City of Corbin may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).
Footnotes
Footnotes
1 As amended KRS 61.880(1) and (2) now provides:
(1) If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(2) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within ten (10) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Eff. July 14, 1992.)