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 Lexington-Fayette Urban County Government violated the Open Records Act in responding to Lexington Herald-Leader reporter John Cheves's September 11, 1997, request for access to the agreement between LFUCG and James Waddy, Jr. settling a civil suit brought by Mr. Waddy. For the reasons that follow, we find that LFUCG violated the Act in withholding the settlement agreement.
The facts giving rise to this appeal are largely undisputed. In August, 1994, Mr. Waddy initiated a civil action against LFUCG in which he alleged breach of contract and emotional distress resulting from the termination of his employment. Three years later, the parties settled the case, and it was dismissed by Fayette Circuit Judge Overstreet. Mr. Waddy and LFUCG executed a settlement agreement which contained a covenant of nondisclosure prohibiting publication of the terms of the release and requiring that LFUCG notify Mr. Waddy "prior to [LFUCG's] response to any request for access to [the] release by any third party."
Upon receipt of Mr. Cheves's September 11 request for access to the agreement, LFUCG immediately notified Mr. Waddy's attorney, advising her that "once the notice is given, it is the responsibility of Mr. Waddy to assert his rights under the Open Records Act. " Citing Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, Ky., 941 S.W.2d 469 (1997), LFUCG emphasized that because the Act requires it to respond in three days, "it is imperative that Mr. Waddy take appropriate action within that time period if he wishes the agreement to remain confidential. "
Shortly thereafter, Linda B. Sullivan, the attorney representing Mr. Waddy, informed LFUCG that Mr. Waddy wished to enforce the confidentiality provisions of the settlement agreement, and that he would file a breach of contract action against LFUCG if it disclosed the terms of the agreement. Neither Mr. Waddy nor Ms. Sullivan took any additional action to prevent disclosure of the agreement.
Three days after Mr. Cheves made his request, LFUCG notified the Herald-Leader that it would not disclose the settlement agreement "because Mr. Waddy has demanded that the settlement remain confidential. " At the same time, LFUCG filed a Motion to Construe Settlement Agreement and Open Records Law with Judge Overstreet. On December 11, 1997, Judge Overstreet overruled LFUCG's Motion to Construe, declaring that because the court had earlier entered an agreed order of dismissal with prejudice, it lacked jurisdiction to consider the matter. The court directed the parties "to proceed under the terms of KRS 61.880." LFUCG took no further action on Mr. Cheves's request. The Lexington Herald-Leader Company thereafter initiated this appeal.
Resolution of this appeal turns on the proper implementation of the Kentucky Supreme Court's directives in Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994), and Lexington-Fayette Urban County Government v. Lexington Herald-Leader , above. In Beckham , the court held that a party affected by a public agency's decision to release records in response to an open records request has standing to contest the agency's decision in court. The court focused on the language of KRS 61.882(1) granting the circuit court of the county where the agency has its principal place of business or where the record is maintained jurisdiction to enforce the Open Records Act "by injunction or other appropriate order on application of any person." Declining the invitation to construe KRS 61.882(1) as a remedy for denial of access only, the court held that "the language used is without any such limitation" and that it would be anomalous to "disregard plain statutory language to conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right." Beckham at 578 and 579. "It would appear," the court noted, "that the General Assembly sought to promote disclosure by devising easy means toward that end, but left the door ajar for those who seek to prevent disclosure by granting them a litigation remedy to enforce the exclusions." Id. at 578. The Supreme Court concluded that the parties affected by disclosure, "having commenced litigation prior to release of the information sought, were entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals." Id. at 579.
In Lexington-Fayette Urban County Government , above, the court held that a privacy claim advanced by the public agency to support nondisclosure of settlement agreements containing confidentiality clauses was "simply insufficient to overcome the public's right of access to information of this type." Id. at 472. The court adopted the reasoning of the Court of Appeals in its analysis of the agreements:
In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection. . . .
Id. at 473. Drawing upon the line of cases construing the privacy exception, the court identified as its primary concern "the nature of the information which is the subject of the requested disclosure; whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation. " Id. at 473. The court found no indication in the record that "significant privacy rights of the settling plaintiffs" were implicated.
Nevertheless, the court again left the "door ajar for those who seek to prevent disclosure. " Beckham at 578. Recognizing that in some cases there may be a legitimate concern for personal privacy "which would be sufficient under the Act," the court held:
If such circumstances prevail, it is the responsibility of the plaintiff or his counsel to see that the agreement reflects his request for confidentiality, and to demand notification from the government prior to release of the agreement. Without such a demand for notice, the governmental entity will ordinarily make the disclosure and a person wishing to prevent it will be without any practical means of asserting his rights under KRS 61.882(1). [Citation omitted.] When the agreement so provides, however, the governmental entity will give notice to the affected party who may then take such further action as he deems appropriate.
Lexington-Fayette Urban County Government at 473.
We find no support for LFUCG's position that Beckham and Lexington-Fayette Urban County Government provide independent authority for the nondisclosure of the disputed settlement agreement. Neither these cases nor Fayette County Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981),City of Louisville v. Courier-Journal & Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982), and Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), which LFUCG cites as additional support for its response, "by themselves serves as appropriate authority upon which to deny access to documents in similar circumstances." Each case is grounded in existing statutory language, Beckham and Lexington-Fayette Urban County Government in KRS 61.882(1) and Fayette County Board of Education, City of Louisville , and Skaggs in one or more of the exceptions codified at KRS 61.878(1)(a) through (l).
We therefore reject LFUCG's argument that "the only reason . . . the settlement agreement could be withheld from the Herald-Leader was the language in LFUCG v. Herald-Leader which required the subject of the records to assert his or her own privacy rights through the courts pursuant to KRS 61.882(1)." LFUCG having notified Mr. Waddy that a request for access to the settlement agreement had been received, and Mr. Waddy having failed to contest disclosure of the agreement in court, LFUCG was obliged to proceed under KRS 61.880(1) by complying with the request or denying inspection on the basis of one or more of the exceptions authorizing the withholding of the record. The procedural requirements of the Open Records Act are not indefinitely suspended while Mr. Waddy weighs his options.
Clearly, Beckham establishes that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). The court exhaustively documents the herculean efforts of the affected parties to prohibit the agency from releasing the records relating to them. In Lexington-Fayette Urban County Government , the court emphasized that under Beckham it is the affected party who, upon receipt of notice that a request has been made, must "take such further action as he deems appropriate. " It is not incumbent on the agency to "force [the affected party's] hand" or compel him "to articulate his reason for wanting the document to remain confidential. "
It is instead incumbent on the public agency to responsibly discharge its duties under the Open Records Act. The "right of persons who might be affected by the release of governmental information to be heard on their privacy claim, " which was recognized in Beckham and Lexington-Fayette Urban County Government , is triggered when a public agency expresses its intention to disclose that information, and the affected parties commence litigation prior to disclosure. Lexington-Fayette Urban County Government at 472. It cannot be employed by a public agency to avoid its duties under KRS 61.880(1) to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [a] request whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision." The problem for LFUCG is not that Mr. Waddy will not act to assert his privacy rights, but that it has abdicated its statutory duty. Having apparently formed no opinion of its own as to the propriety of release of the agreement, it relies on the existence of a confidentiality clause as the basis for inaction. An agency "may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential." Id. citing Anchorage School District v. Anchorage Daily News, 779 P2d 1191, 1193 (Alaska 1989).
What is abundantly clear is that "a confidentiality clause reached by agreement of the parties to litigation cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act. " Id. The courts and this office have long recognized that the settlement of litigation with a governmental entity is a matter of legitimate public concern. Courier-Journal & Louisville Times Co. v. McDonald, Ky., 524 S.W.2d 633, 635 (1974) (holding that "the payment of city funds . . . is a matter with which the public has a substantial concern, against which little weight can be accorded to the desire of the plaintiff in that suit to keep secret the amount of money he received"); Lexington-Fayette Urban County Government , above at 472 (holding that the privacy claim advanced in support of nondisclosure of settlement agreements with a public agency" is simply insufficient to overcome the public's right of access to information of this type"); OAG 91-20; OG 92-17; 94-ORD-72. The clear presumption is that such agreements must be made available for public inspection.
On this presumption, the settling party may wish to insert a confidentiality clause into the agreement. 1 Upon receipt of notice that the agreement will be released, he must immediately act to assert his privacy claims in court. Since this privacy claim must be "sufficient under the Act," the settling party will seldom be called upon to enforce his own claim of exclusion. Id. at 473. If, after reviewing the settlement agreement, the public agency determines that disclosure raises legitimate concerns for personal privacy because the agreement contains information "which would be likely to cause serious personal embarrassment or humiliation, " it can and should deny access to it on the basis of KRS 61.878(1)(a). 2 Absent these concerns, it can and should release the record.
Mr. Waddy's reasons for demanding nondisclosure of the agreement cannot be considered when he is unwilling to actively enforce his rights under Beckham and Lexington-Fayette Urban County Government . The threat of a breach of contract suit against LFUCG for disclosure of the record is not sufficient to relieve the public agency of its statutory duties. This office's review of the settlement agreement reveals little if anything in the agreement of a personal nature, and nothing which would cause Mr. Waddy such serious personal embarrassment or humiliation that it would overcome the presumption of openness. His "desire . . . to keep secret the amount of money he received" can be accorded little weight. McDonald at 635 (emphasis added). We therefore conclude that LFUCG violated the Open Records Act in withholding the settlement agreement.
In the absence of procedural guidelines for the bringing of exclusion claims in court by affected parties, and agency action pending assertion of the claim, we believe that KRS 61.880(1) controls. The agency must respond to the open records request in writing and within three business days, and release the requested record or deny inspection on the basis of one or more of the specific exceptions codified at KRS 61.878(1)(a) through (l). No doubt, this gives the agency scant time to notify the affected party or parties 3 of the request, and the affected party or parties a narrow window of opportunity to commence litigation, but existing law permits no deviation from this rule. 4 Nevertheless, this office cannot approve a policy of agency inaction in the face of a pending open records request while the party affected by disclosure of the records "sits on his rights." LFUCG's failure to comply with the requirements of KRS 61.880(1) therefore constituted a procedural violation of the Open Records Act.
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.
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Distributed to:
Robert F. Houlihan, Jr.Kymberly T. WellonsStoll, Keenon & Park, LLP201 East Main Street, Suite 1000Lexington KY 40507-1380
Theresa L. HolmesCorporate CounselLexington-Fayette Urban County Government200 East Main StreetLexington KY 40507
Mr. John Cheves, Staff WriterLexington Herald-Leader100 Midland AvenueLexington KY 40508-1999
Footnotes
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