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 from the City of Louisville's denial of Patricia B. Hughes's open records request to review certain of the City's records relating to two lawsuits in which it was involved.
In her letter of appeal, dated June 11, 1999, Ms. Hughes stated that on May 19, 1999 and June 4, 1999, she had submitted open records requests to the City and had yet to receive a response.
After receipt of the letter of appeal, we sent a Notification to Agency of Receipt of Open Records appeal to the City with a copy of Ms. Hughes's letter attached. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Stephanie Harris, Assistant Director of Law, responding on behalf of the City, provided this office with a response to the issues raised in the letter of appeal.
In her response, Ms. Harris explained that Ms. Hughes's letter of May 19, 1999, was received by the City's Department of Finance and Budget on May 25, 1999 and forwarded to its Law Department on the same date. Ms. Harris stated that on May 27, 1999 the City responded to the request. A copy of the City's May 27<th> letter, which denied the request, was attached to Ms. Harris's response.
In reference to Ms. Hughes's June 4<th> letter, Ms. Harris indicated that on June 23, 1999, the City received a letter from Ms. Hughes with a copy of her June 4, 1999 letter attached. Notations on it indicated that it had been received and stamped by the office of Tony Miller, Circuit Court Clerk, Jefferson County, on June 7, 1999. Ms. Harris stated that as best as could be determined, the City had never received this letter.
Under these facts, there is insufficient information for this office to reconcile the conflicting contentions of the parties relative to the City's purported failure to respond to Ms. Hughes's two requests and the City's assertion that it timely responded to the first request on May 27, 1999. Accordingly, we make no finding on the procedural issue and proceed to the substantive issue raised in the appeal.
In her request dated May 19, 1999, Ms. Hughes requested:
Under the Kentucky Open Records law, I want to review the following records pertaining to the federal lawsuit denominated Cullinan v. Abramson, et al and the Kentucky lawsuit denominated Cullinan v. Heavrin, et al:
Stephanie Harris, Assistant Director of Law, responding on behalf of the City, denied Ms. Hughes's request on the ground that her request was virtually identical to the recent request of Keith Cullinan and she suspected Ms. Hughes was seeking to obtain the records on behalf of Mr. Cullinan, who was a litigant against the City in the above cases. 1
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 3, this office requested additional documentation from the City relative to this issue. In response to this request, Ms. Harris, by letter dated July 16, 1999, stated that the records requested in both Mr. Cullinan's and Ms. Hughes's requests pertain to active, pending civil litigation by Mr. Cullinan against the City and former City officials. She stated that Mr. Cullinan had requested the same documents during pretrial discovery in one of the cases and the defendants had filed an objection to the request. Ms. Harris attached a copy of that portion of Mr. Cullinan's discovery request. It asked for the following records, to which the City filed its objection:
28. Please produce all documents pertaining to any actual or possible indemnification by the City of any person or entity as a result of the prosecution of the Initial Actions or the Excess Funds litigation.
And in Mr. Cullinan's First Request of Interrogatories:
81. Please state whether you maintain that you are entitled to full or partial indemnity by any one for any of the claims made against you herein. If so, please state:
a. All bases of such indemnity, providing specific reference to statutes and/or ordinances;
b. Whether such entitlement is as to attorneys fees, costs, settlement and/or judgment;
c. All facts upon which such claimed entitlement exists;
d. The names, addresses and telephone numbers of all persons who have discoverable knowledge of such facts;
e. All documents referring to or related to or establishing such claimed entitlement.
Addressing the denial of Ms. Hughes's May 19, 1999 request and substantiating the City's bases for denial, Ms. Harris explained:
On May 10, 1999, Mr. Cullinan submitted an open records request seeking documents pertaining to pending litigation by Mr. Cullinan against the City and former city officials. (Exhibit B). On May 13, 1999, the City denied Mr. Cullinan's request on the basis of KRS 61.878(1), which provides that a party to litigation cannot use the open records act to obtain information outside the rules of discovery. (Exhibit C). About two (2) weeks after the City denied Mr. Cullinan's open records request, Ms. Hughes submitted an identical open records request to that of Mr. Cullinan. (Exhibit D). Again, the City denied Ms. Hughes' request on the basis of KRS 61.878(1). (Exhibit E). The City strongly suspected that Ms. Hughes was acting on the behalf of Mr. Cullinan and therefore denied the request stating that a person acting on behalf of a party to pending litigation cannot use the open records act to obtain records for the party.
It is more than coincidental that both Mr. Cullinan and Ms. Hughes submitted the exact request for the same records. The records requested by both are records that a disinterested third party would normally not request unless the record had some "value" to them. Furthermore, no one outside of the parties in the lawsuit would normally have an interest in these records.
The question presented in this appeal is whether the City violated the Open Records Act in denying Ms. Hughes's request under authority of KRS 61.878(1). For the reasons that follow, we find that the City failed to meet its burden of establishing that Ms. Hughes was, in fact, seeking to obtain the records on behalf of Mr. Cullinan, who was a litigant against the City, and thus improperly denied her access to the records under KRS 61.878(1).
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 of KRS 61.878(1):
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.
Moreover, 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.
This office has also recognized that, normally, the purpose of the person seeking inspection of public record has no bearing on whether the request should be granted or denied. OAG 92-119. However, if an individual, who is not a party to a litigation, attempts to use the Open Records Act to obtain records or information for a litigant to circumvent the rules of discovery, we have held the purpose of the request is relevant.
In 99-ORD-92, we found that the Lottery Corporation had properly denied a nonparty requester access to agency records, where it provided sufficient bases to establish that the nonparty requester was attempting to obtain the records for a party to the litigation outside the rules of discovery. The Corporation established that the twenty three part records request submitted by the nonparty requester was identical in nature to the 17 part records request which the party to the litigation had submitted to the Corporation; both requests referenced the same affidavit which was filed by the Corporation in litigation before the Kentucky Unemployment Insurance Commission; that the records in both requests were the same records which were the subject of a discovery dispute currently pending before the Commission; that the nonparty requester had represented the party to the litigation in his unemployment case against the Kentucky Lottery Corporation; and the two had collaborated on open records requests in the past.
In the instant appeal, the City denied Ms. Hughes's request on the ground that the two part request was virtually identical to the request of Keith Cullinan, a party to litigation with the City. It argues that the records and information requested are the subject matter of a discovery dispute in that litigation; that Ms. Hughes's open records request was filed about two weeks after the City denied Mr. Cullinan's request, under authority of KRS 61.878(1); and the records requested in both requests "are records that a disinterested third party would normally not request unless the record had some 'value' to them. Furthermore, no one outside of the parties in the lawsuit would normally have an interest in these records."
In our view, these facts do raise the question that Ms. Hughes and Mr. Cullinan may be in league. However, it is our conclusion that the City has failed to establish that such relationship does, in fact, exist. The City has not met its statutory burden of proof by establishing that Ms. Hughes is "attempting to obtain this information for a litigant [Mr. Cullinan] outside the rules of discovery. " Department of Corrections v. Courier-Journal and Louisville Times Company , Franklin Circuit Court, id. at page 2. Although an open records appeal is a difficult venue to resolve such allegations; nonetheless, absent more proof, we find the City must make the records available for inspection or seek a protective order or other appropriate action in the court(s) where the discovery dispute is currently pending to enjoin the release of the documents and information.
Finally, since the question of whether the requested records are a proper subject of discovery is in dispute before the courts, it would be improper for us to attempt to substantively determine that issue. We believe that 97-ORD-163 is controlling. The Attorney General will not issue a decision on this discovery matter since "we are not inclined to invade the courts' prerogative in determining the scope of discovery in the pending civil action between [Mr. Cullinan] and the [City]." 97-ORD-163, page 6.
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.
Footnotes
Footnotes
1 Mr. Cullinan's May 10, 1999 open records request submitted to the City, read as follows:
Pursuant to the Kentucky Open Records Act, I wish to inspect the following public records, all of which relate to the federal lawsuit styled Cullinan v. Abramson, et al or the state law suit styled Cullinan v. Heavrin et al :
1. All requests or notices to the City of Louisville by the defendants in such actions relating to indemnity and/or providing of defense.
2. Responses by the City of Louisville to such requests or notices.