Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Jefferson County Sheriff's response to Kenneth L. Sales's September 17, 1997, request for copies of nineteen categories of documents relating, in general, to personnel policies, procedures, and actions within the Sheriff's office from 1986 to the present. On September 19, Richard Lynch responded to Mr. Sales's request on behalf of the Sheriff. Relying on KRS 61.878(1) and OAG 82-280, Mr. Lynch denied the request, noting "the virtual identity between these requests and the requests made in Plaintiff's First Request for Production of Documents to Defendant in the Yancey vs. Vaughn case . . . in which you represent the plaintiffs." He explained:
The Court has entered an order in the Yancey vs. Vaughn case which may stay the production of documents pending resolution of other matters. In addition, there is a pending motion for protective order in that case which, if granted, would bar production of the materials you seek. Therefore, the Sheriff's Office must conclude that your open records request seeks to circumvent the discovery process of the Jefferson Circuit Court.
It is from this decision that Mr. Sales appeals, arguing that the Open Records Act does "not specify this as a basis for denial," and that the Sheriff's action denies him equal protection. Mr. Sales observes, "Whether or not I may, through litigation, procure certain documents and records, is irrelevant to the Legislature's desire that public officials maintain records to be open for the examination of the public." In closing, he notes that he has the same rights as any other citizen to review the records identified in his request, and his "motive in doing so is irrelevant."
In a follow-up letter to this office dated October 16, 1997, John O. Sheller, an attorney representing the Sheriff, elaborated on Mr. Lynch's response. Mr. Sheller explained that this open records appeal arises from an ongoing race discrimination action filed against the Sheriff by deputies within his office. The Sheriff, who has resisted discovery on various grounds, has filed motions for a protective order which have not yet been ruled on by the circuit court. The circuit court has, however, ruled that unless the Sheriff commences interlocutory proceedings, in the Court of Appeals seeking review of the circuit court's actions to date, the Sheriff will be compelled to provide discovery response. The Sheriff initiated such proceedings on September 19, 1997. Among the issues which the Sheriff has asked the Court of Appeals to review is the scope of discovery issue.
We are asked to determine if the Jefferson County Sheriff violated the Open Records Act in denying Mr. Sales's request. Because the scope of discovery issue presented in this appeal is currently before the Jefferson Circuit Court on motions for a protective order and the Kentucky Court of Appeals on a petition for writs of mandamus and prohibition, we decline to render a decision on this issue.
Contrary to Mr. Sheller's belief, the Attorney General has long recognized that a public agency is not relieved of its duties under the Open Records Act by virtue of pending litigation. In an early opinion, this office observed:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the record.
OAG 82-169, p. 2. Elaborating on this view in a subsequent decision, we stated:
Inspection of public 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, p. 3. We noted that in making this observation, we did not intend to:
suggest 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. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery.
Id. See also, OAG 89-53, p. 4. Thus, the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool.
Just as the public agency is not relieved of its obligations under KRS 61.880(1) in the presence of litigation, so to the Attorney General is not relieved of his obligations under KRS 61.880(2) when there is litigation in the background. In OAG 80-278, we held that despite the fact that litigation was in progress and regular discovery procedures were therefore appropriate, "KRS 61.880(2) requires the Attorney General to give an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law. " OAG 80-278, p. 3.
Nevertheless, on at least one occasion this office has declined to render an opinion in an open records appeal where litigation was in the background. In OAG 88-78, we were asked to determine if the University of Kentucky properly denied the Lexington Herald-Leader's request for a copy of an NCAA Supplemental Official Inquiry. This issue was also the specific focus of a petition for declaration of rights in the Fayette Circuit Court. Citing KRS 61.882, we recognized that "the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions." OAG 88-78, p. 3. Under these circumstances, we concluded, "it would be improper for this office to attempt to substantively determine an open records question, when the same question is before a circuit court. . . . Whether the bases of exemption stated by the University are correct is a question that must be left to the Fayette Circuit Court in view of the pending action. . . ." OAG 88-78, p. 4. We believe that this opinion, although factually distinguishable, has a direct bearing on this appeal.
The issue of records access with which we are presented has not been so neatly framed in the motions for protective order pending in the Jefferson Circuit Court and the petition for writs of mandamus and prohibition pending in the Court of Appeals. It is our opinion, however, that the issue is the same, namely what is the scope of discovery in Yancey v. Vaughn . As the attorney representing the plaintiffs in this action, Mr. Sales does not stand in the same shoes as an ordinary open records requester when the issue of access turns on the scope of discovery. KRS 61.878(1) provides:
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 94-ORD-19, the Attorney General held that KRS 61.878(1) could not be invoked by a public agency to deny non-litigants access to public records which relate to a pending civil action. See also
Department of Corrections v. Courier-Journal and Louisville Times, Ky.App., 914 S.W.2d 349 (1996) (affirming 94-ORD-19). In 95-ORD-18, the Attorney General 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 that 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.
95-ORD-18, p. 4. There, we held that a litigant was entitled to review a public agency attorney's travel expense records despite the agency's claim that the records were not relevant to the pending civil litigation and therefore not discoverable under the civil rules. The Attorney General observed:
If, in fact, they have no bearing on the action, the records do not fall within the language of the amendment since they do not "pertain [] to [the] civil litigation" to which the requester is a party. Taken to its logical conclusion, the . . . agency's argument would preclude a litigant from inspecting any and all records unrelated to litigation with the . . . agency because they have no "possible bearing" on that litigation.
Id. As recently as June of this year, the Attorney General held that KRS 61.878(1) could not be invoked to extend a public agency's three day open records response time to the thirty day Federal Rule of Civil Procedure response time for requests for production. 97-ORD-98.
From these decisions we must infer that a public agency cannot, in an open records appeal, be compelled to produce properly excludable public records pertaining to civil litigation to a party when those records are excluded from pre-trial discovery by the Rules of Civil Procedure. At the heart of the controversy presented to this office in Mr. Sales's appeal is the issue of what is discoverable in Yancey v. Vaughn . Although this office has rarely declined to rule on a question presented in an open records appeal, we believe that "it would be improper for [us] to attempt to substantively determine an open records question, when the same question is before a circuit court . . . [and the Court of Appeals].
This conclusion is restricted to the particular facts of this appeal. We do not retreat from the well established view that the presence of litigation does not suspend a public agency's duties under the Open Records Act or this office's duties under the Act. The question presented in this appeal having already been presented to the circuit court and Court of Appeals, we are not inclined to invade the courts' prerogative in determining the scope of discovery in the pending civil action between Mr. Sales's clients and the Jefferson County Sheriff.
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.