Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
In re: Glenn E. Bone/Louisville Civil Service Board
Open Records Decision
The question presented in this appeal is whether the Louisville Civil Service Board complied with the Open Records Act in responding to Glenn E. Bone's May 8, 1997, request for copies of various records relating to recruitment and hiring in the Louisville Division of Police. For the reasons which follow, we find that the Board improperly relied on KRS 61.878(1) in postponing release of the requested records, and Supreme Court Rule 3.130, Rule 4.2, in refusing to communicate directly with Mr. Bone on matters pertaining to his open records request.
Mr. Bone is engaged in federal litigation with the City of Louisville and the Civil Service Board on issues relating to his eligibility as a police recruit. He is represented in that litigation by attorney Mark Boylan. The Louisville Civil Service Board is represented by Mark W. Dobbins. On May 13, 1997, Mr. Dobbins responded to Mr. Bone's request through his attorney, Mr. Boylan. Citing KRS 61.878(1), which provides that "no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery, " Mr. Dobbins argued that this provision authorized him to act in accordance with the Federal Rules of Civil Procedure governing pretrial discovery, and in particular FRCP 34 (b), requiring written responses to requests for production to be served within thirty days of service of the request rather than the three business days required by the Open Records Act. Since the records requested by Mr. Bone "may be relevant to" the pending federal litigation, Mr. Dobbins indicated that his letter could be characterized as a request for production of documents. Therefore, Mr. Dobbins asserted, the Board would respond within thirty days.
With respect to his refusal to communicate directly with Mr. Bone on his open records request, Mr. Dobbins stated that because of the pending litigation, he was obligated to respond to Mr. Boylan rather than Mr. Bone. In support, he cited Supreme Court Rule 3.130, Rule 4.2, "which requires a lawyer to communicate with the lawyer of another party rather than with the party directly unless that party's lawyer has consented to the direct communication with the party." Further, he noted, based on the Kentucky Supreme Court's decisions in Shoneys, Inc. v Lewis, Ky., 875 S.W.2d 514 (1994) and K-Mart Corporation v Helton, Ky., 894 S.W.2d 630 (1995) Mr. Bone is prohibited from directly contacting supervising employees of the Louisville Civil Service Board for purposes of filing open records requests since the Board is a party to the civil litigation which he initiated.
On May 27, 1996, the Board released the requested records to Mr. Boylan, requesting that he make his client aware that the records had been produced. It is our opinion that the records should have been sent to Mr. Bone directly and within three business days of receipt of his request "unless a detailed explanation of the cause [was] given for further delay and the place, time, and earliest date on which the public record [would] be available for inspection. " KRS 61.872(5).
We begin by noting that KRS 61.878(1) did not authorize the Board, or its attorney, to "act in accordance with FRCP 34(b)" and thus ignore the three day statutory deadline for agency response codified at KRS 61.872(5) and KRS 61.880(1). As noted, KRS 61.878(1) provides:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
In our view, the Board's interpretation of this provision does not square with its express language. In 95-ORD-18, the Attorney General analyzed KRS 61.878(1) in considerable depth. At page 4 of that decision, we held that the provision:
means that should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to the action , and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
(Emphasis in original.) The latter view finds ample support in open records decisions of this office. Thus, in 95-ORD-27 we rejected the argument that an open records request was improper, and could be denied, "because it represent[ed] an attempt to use the Open Records Act as a substitute for discovery. " 95-ORD-27, p. 8. Continuing, we observed:
The presence of litigation . . . does not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. At page 3 of OAG 89-65, we observed:
However, we noted that in making this observation, we did not intend to:
Id. See also, 89-53, p. 4. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.
Nevertheless, as the Attorney General observed in an early opinion:
OAG 82-169, p. 2.
Id.
We therefore conclude that the Louisville Civil Service Board improperly relied on KRS 61.878(1) to extend its response time to thirty days, under FRCP 34 (b), and that it was instead bound to conform to the procedural requirements of the Open Records Act, and in particular the requirement that it respond to Mr. Bone's request within three days. Its failure to do so constitutes a violation of the Open Records Act.
Turning to the issue of direct communication between the Board's employees, the Board's attorney Mr. Dobbins, and Mr. Bone relative to the latter's open records request, we find that neither the cited Rule of Professional conduct nor the cited caselaw precludes such communication. Mr. Dobbins relies on Supreme Court Rule 3.130, Rule 4.2, which provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
In 97-ORD-71 we held that the fact that the requester was an attorney representing a party who was engaged in litigation with the agency which was the subject of his open records request did not relieve the agency of its duty to respond, or compel the requester to address his request to the agency's attorney, Rule 4.2 notwithstanding.
Although there are no Kentucky cases on point, this position finds support in a New York case, Fusco v City of Albany, 134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the same question, and construing a nearly identical rule of professional conduct, the New York Supreme Court held that the contention that the rule "prohibits an attorney for a litigant suing a governmental body from communicating with employees of that governmental body for the purpose of examining public records under the Freedom of Information Law" was erroneous. Id. at 766. The court noted:
The key language is that permitting an attorney to directly contact an adverse party when "authorized by law to do so." The Freedom of Information Law is a law authorizing such direct contact without the prior consent of the government's lawyer. Any other construction would thwart the legislative intent behind FOIL. . . .
Id. Kentucky's Rule of Professional Conduct contains the same key language. In our view, the logic of Fusco v City of Albany can be extended to the present appeal. With respect to Mr. Dobbins's assertion that Mr. Bone is precluded from direct communication with employees of the Civil Service Board for purposes of filing an open records request, and the supporting cases which he cites construing Rule 4.2, we note that as a non-attorney, he is not bound by the Rules of Professional Conduct. We therefore find no impediment to direct communication between employees of the Civil Service Board, the Board's attorney, and Mr. Bone relative to his open records requests.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.