Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lawrence Circuit Court Clerk violated the Open Records Act in failing to respond to David Johnson's December 5, 1997, request for the transcript of the January 16, 1990, proceedings during which he was tried and convicted. For the reasons which follow, we find that the Circuit Court Clerk is not bound by the provisions of the Open Records Act, and therefore cannot be said to have violated the Act in failing to respond to the request.
Our decision is based on KRS 26A.200, KRS 26A.220, and the Kentucky Supreme Court's decision in Ex parte Farley, Ky., 570 S.W.2d 617 (1978). In Farley , the Supreme Court held that records generated by the courts are not subject to statutory regulation. "Records in the hands of the clerk, " the court noted, "are the records of the court." Farley at 624. The court thus held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . some details of the law . . . present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept." Farley at 625. The Attorney General has relied on this language in consistently holding that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court's rules and regulations governing access to its own records, and are accepted as a matter of comity. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173; 97-ORD-138.
This position finds support in KRS 26A.200 and KRS 26A.220. KRS 26A.200 provides that all records which are made by or generated for or received by any other court, agency, or officer responsible to the Court, are the property of the Court and are subject to the control of the Supreme Court. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4.
Moreover, KRS 26A.220 provides:
All public officers, public agencies, or other persons having custody, control or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
Analyzing the relationship between KRS 26A.220 and 26A.200 and the Open Records Act, the court concluded at page 624 of Ex parte Farley:
Whether [the provisions of the Act] conflict with or are harmonious with KRS 26A.200 - 26A.220 . . . we need not decide, because we are firmly of the opinion that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.
See also,
York v Commonwealth, Ky. App., 815 S.W.2d 415, 417, 418 (1991) (stating that "the only statute which specifically names courts as public agencies [namely, the Open Records Act] has been held not to apply to court records").
It is for the court, and not this office, to determine which policies evinced by the Open Records law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. Simply stated, disputes relating to access to court records must be resolved by the court.
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.