Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal by Christophe G. Stewart from the Kentucky Lottery Corporation's denial of his requests for records maintained by the Corporation relating to a claim for unemployment insurance presently before the Kentucky Unemployment Insurance Commission.
Responding on behalf of the Lottery Corporation, Camille Bathurst, General Counsel and Corporate Secretary, denied Mr. Stewart's request, stating in part:
This letter is in response to your open records request dated April 21, 1999 and is made pursuant to KRS 61.870 et seq. The exemption section of the Open Records Act KRS 61.878(1) provides that:
The material that you have requested pertains to pending litigation and is currently the subject of a discovery dispute. The request is therefore denied on the basis of the language of the statute in that the resolution of the discovery dispute by the Kentucky Unemployment Insurance Commission will resolve your request for documents. Anything which you are found not to be entitled to by the Unemployment Insurance Commission will likewise not be subject to discovery per the Open Records Act.
In his letter of appeal, Mr. Stewart argues that the Lottery Corporation is using the civil litigation exception contained in KRS 61.878(1) to avoid disclosing information that would otherwise be subject to open records requests. He further advises that he is not a party to, or representing a party, in the unemployment dispute.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Bathurst provided this office with a response to the issues raised in the appeal. In her response, Ms. Bathurst states:
This response is with respect to both of the above-referenced Open Records Appeals filed by Keith Hunter, Esq. ("Mr. Hunter") and Christophe G. Stewart, Esq. ("Mr. Stewart"). Mr. Stewart and Mr. Hunter have requested the same documents and these requests stem from the same dispute. Further, the documents requested are also the subject of a prior subpoena duces tecum issued by the Jefferson County Court with respect to a proceeding before the Kentucky Unemployment Insurance Commission.
In order to understand the Kentucky Lottery Corporation's position with respect to the denial of the requests, some background is necessary. This matter arises out of an unemployment insurance benefits hearing before the Commonwealth of Kentucky, Kentucky Unemployment Insurance Commission, In re Edward J. Gilmore. In that matter, Mr. Gilmore is represented by Mr. Hunter. An initial hearing was held on February 17, 1999 before a referee. After Mr. Hunter had cross-examined the Kentucky Lottery Corporation's witnesses, it was decided that the hearing would be continued until March 17. On March 12, 1999, by facsimile, Mr. Hunter noticed the deposition of Harvey Roberts, the Information Technology Director for the Kentucky Lottery Corporation, and also sent a subpoena duces tecum issued by the Jefferson County Court requesting detailed information about the telephone logs for similarly situated employees. The Kentucky Lottery Corporation, through counsel, filed a Motion for Protective Order with respect to the notice and subpoena and a Motion to Quash Subpoenas that had been issued to other Kentucky Lottery Corporation employees. The Kentucky Lottery Corporation simultaneously filed a Motion to Disqualify Mr. Hunter as counsel for Mr. Gilmore on grounds that he was previously general counsel of the Kentucky Lottery Corporation and that a conflict of interest precluded him from such representation. On April 14, 1999, the principal Appeals Referee issued an Order denying the Motion to Disqualify Counsel, denying the Motion to Quash Subpoenas of the two employees, but granting the Motion for a Protective Order as to the deposition of Mr. Roberts. The principal Appeals Referee also noted that the subpoena duces tecum had not been properly issued, thus the issue may be revisited at the next referee hearing. On April 23, 1999, the Kentucky Lottery Corporation appealed to the Kentucky Unemployment Insurance Commission the Order of the Appeals Referee which denied the Lottery's Motions to disqualify and quash subpoenas. On May 5, 1999, the Commission issued an Order concerning the Appeal. With respect to the Motion to Disqualify Counsel, the Commission concluded it did not have jurisdiction to make that determination. The Commission also declined to intercede on the issue of whether the subpoenas of the two employees were properly issued. Contemporaneous with this Response to Open Records Appeal, the Kentucky Lottery Corporation is filing a Motion to Reconsider with the Unemployment Commission with respect to its May 5 Order. In the event that the Commission orders the Kentucky Lottery Corporation to comply with the subpoena , the Kentucky Lottery Corporation of course will comply with all discovery requests.
Further, it is necessary in order to understand this proceeding that the Attorney General understand the relationship between Mr. Stewart and Mr. Hunter. The Open Records Requests at issue are identical in nature. Mr. Stewart represented Mr. Hunter in his unemployment case against the Kentucky Lottery Corporation and the two have collaborated on open records requests in the past. Mr. Stewart's request mirrors Mr. Hunter's. In his request, Mr. Stewart seeks the same information as Mr. Hunter and references the same affidavit which was filed by the Kentucky Lottery Corporation in the unemployment proceedings. It is the information and belief of the Kentucky Lottery Corporation that Mr. Stewart is in fact doing this request at Mr. Hunter's behest. Thus, for purposes of the denial of the Open Records Request, the Kentucky Lottery Corporation viewed both requests as coming from a party in litigation with the Kentucky Lottery Corporation and which went to materials which were the subject of an ongoing discovery dispute.
We are asked to determine if the Kentucky Lottery Corporation violated the Open Records Act in denying Mr. Stewart's request. Based on the fact that the requested records are the subject matter of a discovery dispute currently pending before the Kentucky Unemployment Insurance Commission, and our conclusion that the factual circumstances surrounding this appeal supports the Corporation's position that Mr. Stewart submitted this open records request on behalf of a party to the litigation, we decline to render a decision on this issue.
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.
However, on at least two occasions this office has declined to render a decision 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.
In 97-ORD-163, an open records appeal arose from an ongoing race discrimination action filed against the Jefferson County Sheriff by deputies within his office. The Sheriff, who had resisted discovery on various grounds, had filed motions for a protective order which had not yet been ruled on by the circuit court. The circuit court had, however, ruled that unless the Sheriff commenced interlocutory proceedings, in the Court of Appeals seeking review of the circuit court's actions to date, the Sheriff would be compelled to provide discovery response. The Sheriff initiated such proceedings on September 19, 1997. Among the issues which the Sheriff had asked the Court of Appeals to review is the scope of discovery issue. Relying upon KRS 61.878(1), the Sheriff noted the virtual identity between the records requested in the open records request and the requests made in Plaintiff's First Request for Production of Documents to Defendant in a case in Jefferson Circuit Court, in which the open records requester also represented the plaintiff. We declined to decide the open records appeal, stating it would be improper for us to attempt to substantively determine an open records question, when the same question, i. e., the scope of discovery, was before the circuit court and the Court of Appeals. In reaching that decision, we stated:
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 [the requester's] appeal is the issue of what is discoverable in [the circuit court case]. 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 [the requester's] clients and the Jefferson County Sheriff.
We think OAG 88-78 and 97-ORD-163, although factually distinguishable, are dispositive of this issue in the instant appeal. Here, the Lottery Corporation, relying upon KRS 61.878(1), denied Mr. Stewart's request on the basis that the records sought by Mr. Stewart were the subject matter of a pending discovery dispute before the Unemployment Insurance Commission.
Under authority of KRS 61.878(1), OAG 88-78 and 97-ORD-163, we decline to render a decision in this appeal. Although this is a proceeding before an administrative commission, rather than a circuit court, the same principles apply for our withholding action on the open records appeal, pending resolution of the discovery dispute before the administrative tribunal. As noted by Ms. Bathurst, in her response to this office, if in fact the Commission resolves that dispute in the applicant's favor, the records in dispute would be made available to that party.
We take this position notwithstanding the fact that Mr. Stewart is not a "party" to the litigation between Mr. Gilmore and the Lottery Corporation. In so doing, we recognize that we are faced with an issue of first impression. That issue is whether KRS 61.878(1) applies to anyone attempting to obtain information for a litigant outside the rules of discovery as well as the litigant himself (or an attorney acting on behalf of the litigant).
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. In 94-ORD-19, we recognized that this narrow construction creates the potential for abuse of KRS 61.878(1). At page three of that decision, we expressed concern that "litigants may circumvent the provision [KRS 61.878(1)] by securing 'materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery' through individuals who are not parties to litigation." On appeal of 94-ORD-19, the Franklin Circuit Court addressed this concern, holding that KRS 61.878(1) "would also apply to anyone attempting to obtain this information for a litigant outside the rules of discovery. " Department of Corrections v. Courier-Journal and Louisville Times Company , Franklin Circuit Court, Civil Action No. 94-CI-00457, Division 1, entered July 27, 1994, at page 2.
These facts exist in the case before us. The Corporation has indicated that the records requested by Mr. Stewart are identical in nature to the records requested by Mr. Hunter in his open records request to this office and both reference the same affidavit which was filed by the Corporation in the unemployment proceedings. The records in both requests are the same records which are the subject of the discovery dispute currently pending before the Unemployment Insurance Commission. The Corporation also states that Mr. Stewart represented Mr. Hunter in his unemployment case against the Kentucky Lottery Corporation and the two have collaborated on open records requests in the past.
The Corporation avers that it is its information and belief of the Kentucky Lottery Corporation that Mr. Stewart is in fact doing this request at Mr. Hunter's behest, and for purposes of the denial of the Open Records Request, the Corporation viewed both requests as coming from a party in litigation with the Kentucky Lottery Corporation and which went to materials which were the subject of an ongoing discovery dispute. We agree.
Under the facts of this case, we find that the Corporation has provided sufficient bases, i. e., the similarity of the open records requests, the prior associations between Mr. Stewart and Mr. Hunter, and the requested records being the same records which are the subject of the discovery dispute currently pending before the Commission, to establish that Mr. Stewart is attempting to obtain this information for Mr. Hunter (counsel for Mr. Gilmore) outside the rules of discovery. Accordingly, we conclude that the Corporation properly denied Mr. Stewart's request on the basis of KRS 61.878(1).
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.