Request By:
Sheriff Gary Lawson
Clark County Sheriff's Department
Winchester, Kentucky 40391
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. William S. Blakeman, editor of The Winchester Sun, has appealed to the Attorney General, pursuant to KRS 61.880, your denial of his January 10, 1992, request to inspect certain documents in the possession of the Clark County Sheriff's Department. Those documents are identified as "the records reflecting the actual monetary settlement" between the Sheriff's Department and Kentucky Farm Bureau Mutual Insurance Company. Mr. Blakeman explains that this settlement was reached in a suit filed by the parents and administrator of the estate of Albert E. Riggs, Jr., who was fatally injured in an automobile accident when his car was struck by a Sheriff's Department cruiser, driven by a deputy sheriff.
Mr. Blakeman indicates that although you acknowledged that you have a copy of a letter outlining the details of the settlement, you refused to permit him to inspect it. You did not respond, in writing, to his request, nor did you cite any exception to the Open Records Act authorizing nondisclosure. It is Mr. Blakeman's understanding that you have been advised by your attorney "to say nothing."
Mr. Blakeman 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 you improperly denied his request.
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.
Your verbal response to Mr. Blakeman's request was inconsistent with the Open Records Act for a number of reasons. KRS 61.880(1) requires that a public agency issue a written response to a request for records within three working days of receipt. If an agency elects to deny the request, its response must cite the specific exception authorizing nondisclosure and include a brief explanation of how the exception applies. A copy of the written denial must then be forwarded to the Attorney General. You failed to comply with any of these provisions in apparent disregard for the law. We strongly urge you to review the cited provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that no grounds exist for denial of Mr. Blakeman's open records request. This Office has consistently held that records reflecting settlements of civil suits by public agencies are subject to full public disclosure. OAG 78-35, OAG 88-43, OAG 90-36, and OAG 91-20. The Kentucky Supreme Court reached a similar conclusion in Courier-Journal v. McDonald, Ky., 524 S.W.2d 633, 635 (1974), reasoning:
Certainly the payment of city funds in settlement of a suit against the city and some of its officers, based on negligence or misconduct in the performance of duty, is a matter with which the public has substantial concern, against which little weight can be accorded to any desire of the plaintiff to keep secret the amount of money he received.
We believe that these opinions are dispositive of the instant appeal.
In OAG 91-20, we addressed the question whether the records of settlement entered into with the understanding that its terms would remain confidential were exempt under KRS 61.878(1)(a), the privacy exemption. There we concluded that the public's right of access to a written settlement, where a public agency is a party to the settlement, outweighs any privacy interests which can be identified. In addition, we noted that in cases where public funds are expended in the case, the balance weighs heavily in favor of disclosure. Continuing, we observed:
It does not follow that if no city funds are expended in an out-of-court settlement involving the city because of the availability of insurance or otherwise, that the public has no legitimate interest in the settlement. City funds were expended in paying the insurance premiums and the public has a legitimate interest in how a lawsuit involving a public agency is settled, at least insofar as the settlement concerns the public agency.
OAG 91-20, at p. 5. Based on this, and prior opinions of this Office, we find that your denial of Mr. Blakeman's request was inconsistent with the Open Records Act, and that you should immediately make the requested records available for his inspection.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. William S. Blakeman. The Clark County Sheriff's Department may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).