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 Adair County Schools violated the Open Records Act in denying a request for copies of "any and all tapes, recordings, and any transcript of any recording, made by [Superintendent Almon Sullivan, Jr.] or anyone acting for Superintendent Sullivan, of any conversations between . . . Juanita Young, [a teacher in the school system, ] and any other person or persons." For the reasons which follow, we find that the school system improperly denied the request.
On February 2, 1998, Arthur L. Brooks, an attorney representing Ms. Young in a civil action pending in the United States District Court for the Western District of Kentucky, submitted a request to Superintendent Sullivan for copies of the records described above. He received no written response to this request. On February 20, Mr. Brooks resubmitted his request. This request also went unanswered. On March 3, 1998, Ron L. Walker, Jr., an attorney in Mr. Brooks's firm who also represents Ms. Young, initiated this appeal.
On behalf of the Adair County Schools, Robert L. Chenoweth responded to Mr. Walker's appeal on March 11, 1998. Mr. Chenoweth argued that Mr. Brooks's open records request represents "a deliberate attempt to by-pass the rules of the court" governing discovery. He explained:
It is . . . the position of the public agency who is my client in the above-referenced litigation that it is not subject to two discovery procedures, one under the FRCP and another under the guise of the Kentucky Open Records Act, KRS 61.870 et seq. If this was not so then any party adverse to a public agency party could ignore the civil rules and the limitations and procedures thereunder and, as well, the scheduling orders of the court. For example, FRCP 34(b) provides that "without leave of court or written stipulation, a request [for production of documents] may not be served before the time specified in Rule 26(d)." It appears the position of opposing counsel in the referenced litigation would be such that a limitation could be avoided by sending an open records request outside the time limits of the civil rules of procedure. Likewise, it would seem opposing counsel would take the position a discovery cut-off deadline imposed by a scheduling order of the court could be ignored and by-passed by seeking document discovery at any time, including post-trial, by the device of an "open records request."
In closing, Mr. Chenoweth asserted that "the fact one party to a piece of litigation is a 'public agency' as defined in KRS 61.870(1) should in no respect alter the manner in which that public agency party and legal counsel is required to practice the case." Relying on Ex parte Farley, Ky., 570 S.W.2d 617 (1978), Mr. Chenoweth urged this office to affirm his client's denial of Mr. Brooks's request.
While the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act. We therefore conclude that the Adair County Schools violated the procedural requirements of the Act in failing to respond to Mr. Brooks's request, and improperly withheld the disputed tapes.
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Although there is litigation in the background of the open records request under review, the requester, Mr. Potter, 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 records.
Elaborating on this view, in a subsequent opinion the Attorney General observed:
The presence of litigation among the parties, alluded to in the Board's counsel's letter, should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
Inspection of 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 Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98.
These open records decisions were accompanied by the following cautionary language:
We do not, in making such observation, 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 procedures.
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the records which Mr. Brooks requested fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed.
The Adair County Schools identify no exception authorizing nondisclosure of these records. Even if the school system had identified such an exception, we believe that KRS 61.878(3) is controlling. That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In construing this provision, this office recently observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register. " When applicable, KRS 61.878(3)overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency.
95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4. In the cited open records decision, the Attorney General held that although KRS 61.878(3) does not contain a specific reference to former employees, the expansive wording of this provision is indicative of a legislative intent to extend this broader right of access to former as well as current public agency employees and applicants for employment.
The record reflects that Ms. Young was, or is, a teacher in the Adair County Schools. As such, she is entitled to inspect and to copy any record that relates to her. This mandatory stricture overrides any otherwise applicable exemption, with the exceptions noted above, to compel disclosure. The Adair County Schools should therefore make immediate arrangements for Ms. Young and her attorneys to review the tape or tapes.
We also note that the school system's failure to respond to Mr. Brooks's February 2 and February 20 open records request in writing, and within three business days, constituted a violation of KRS 61.880 (1). That provision states:
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 record 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.
Just as the school system was not relieved from its obligation to permit inspection of nonexempt public records due to the presence of litigation, so it was not relieved of its obligation to comply with the procedural requirements of the law. Although it appears from the record that the parties were engaged in discussion concerning the tapes, the school system's position was never reduced to writing as required by KRS 61.880(1). We urge the Adair County Schools to review the cited provision to insure that future responses conform to 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.