Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Office of Jefferson County Commissioner Russ Maple/Jefferson County Fiscal Court violated the Open Records Act in denying the open records request of Christina Heavrin for copies of records relating to two Jefferson County zoning matters and the property in question. Specifically, Ms. Heavrin requested copies of all records relating to:
1) The Old Henry Road Subarea Plan, Docket No. 15-1-99
2) Rezoning of property located at 12819 & 12901 Old Henry Road, Dockets No. 9-83-99 and 10-43-99
Also, please provide me with any and all records concerning Laverne Davis and the Berrytown Griffytown Improvement Organization.
By records, I mean all books, papers, minutes, correspondence, maps, notes, reports, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, prepared, owned, used, in the possession of or retained by you. If you do not have custody or control of the records requested, please furnish me with the name and location of the official custodian of your public records.
By letter, John G. Carroll, counsel for Commissioner Maple and the Jefferson County Fiscal Court, denied Ms. Heavrin's request for the following reasons:
1. The records you have requested pertain to the case styled English Station Enterprises, LLC, et al. v. Jefferson County Fiscal Court, et al., Jefferson Circuit Court, Case No. 00-CI-5844. That case is an appeal from the decision of the Fiscal Court denying the plaintiffs' application for a zoning change.
2. You and your office are counsel of record for parties in that action, namely the plaintiffs.
3. The records you have requested are not available through the Rules of Civil Procedure governing pretrial discovery. You have previously attempted to obtain them through the deposition of Mr. Maple and through requests for production of documents propounded to the Fiscal Court as well as through the deposition of LaVerne Davis.
4. Those efforts were the subject of motions for protective orders in the case which resulted in a Protective Order entered February 15, 2001 which, inter alia, ordered and adjudged that the Fiscal Court not be required to respond to requests for admission, interrogatories and requests for production of documents propounded by plaintiffs and a further Protective Order entered March 6, 2001, which prevented you from deposing Ms. Davis.
Therefore, pursuant to KRS 61.878(1), production and inspection of the materials you have requested may not be ordered by a court. To the contrary, production and inspection through pretrial discovery has been explicitly denied by the Court.
Further, the requests are extremely broad, unduly burdensome and not susceptible of a reasonable response by Commissioner Maple.
In her letter of appeal, Ms. Heavrin argues that the Commissioner improperly relied upon KRS 61.878(1) in denying her request. She additionally argued that denial of the request on the basis of "extremely broad, unduly burdensome and not susceptible of a reasonable response" were not grounds recognized under the Open Records law.
After receipt of Ms. Heavrin's letter of appeal, Mr. Carroll provided this office with a response to the issues raised in the appeal. In his response, Mr. Carroll advised, in part:
The records requested pertain to pending litigation styled English Station Enterprises, LLC, et al. v. Jefferson County Fiscal Court, et al., Jefferson Circuit Court, Case No. 00-CI-5844, itself an appeal from the decision of the Fiscal Court denying the plaintiffs' application for a zoning change. Christina Heavrin, appellant herein, and her law firm are counsel of record for the plaintiffs in that action.
?
It cannot be disputed that the records sought pertain to the above-styled litigation or that the requester, as plaintiffs' counsel, is effectively party to the litigation in which the records have already been sought. The pertinence of those records to the pending litigation brings the request within the purview of the last clause of KRS 61.878(1). Therefore, the records are not available through an Open Records Request unless they are within the scope of documents available through pretrial discovery. In the instant case, the Jefferson Circuit Court, in granting Protective Orders in the pending litigation, decided that the records would not be available through pretrial discovery. Specifically, a Protective Order entered February 15, 2001, inter alia, ordered that the Fiscal Court was not required to respond to requests for admission, interrogatories and requests for production of documents propounded by plaintiffs; a further Protective Order entered March 6, 2001, prevented Ms. Heavrin's firm from deposing Ms. LaVern Davis, President of the Berrytown Griffytown Improvement Organization (copies of Protective Orders attached hereto).
We are asked to determine whether the Office of Jefferson County Commissioner/Jefferson County Fiscal Court's denial of the requested records violated the Open Records Act. For the reasons that follow, we conclude that the agencies, as required to do so by the Protective Orders entered by the Jefferson Circuit Court, properly denied the request for agency records that were the subject matter of the orders staying discovery in the two pending cases.
Both parties to this appeal argue that KRS 61.878(1) supports their position. That statute provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.
With particular reference to KRS 61.878(1), the Attorney General, in 95-ORD-18, p. 4., has construed this provision to mean that:
should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to the 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 . . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
In subsequent open records decisions, the Attorney General confirmed that KRS 61.878(1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize nondisclosure. 00-ORD-97. Compare 98-ORD-15 (records requested by party litigant which pertain to pending litigation, and fall within the attorney client privilege, may be withheld under KRS 61.878(1) because they are protected from pretrial discovery by the Rules of Civil Procedure) .
In the instant case, the public agencies did not claim that any of the requested records were exempt under any of the 12 categories of exceptions set forth in KRS 61.878(1). The agencies denied access because the Jefferson Circuit Court had entered Protective Orders staying discovery of records that are the subject matter of this appeal. This office has long recognized that the Open Records Act in no way supercedes a protective order when a public agency is properly before a court. 94-ORD-19; OAG 89-22.
Since Ms. Heavrin, as plaintiff's counsel, and the Office of Jefferson County Commissioner and Jefferson County Fiscal Court are parties to the litigation in which the Protective Orders were issued and because the documents in question come within the purview of the protective orders, they are required to obey the stay of discovery order out of deference to the judicial process. 96-ORD-65. The public agencies, in compliance with the court's protective orders, properly denied access to the records protected from discovery by the court's orders. Accordingly, we conclude the denial of Ms. Heavrin did not constitute a violation of the Open Records Act.
Both parties cite Kentucky Lottery Corporation v. Stewart, 2001 WL 173833 (Ky. App. 2001), in support of their respective positions. The Court of Appeals, in interpreting KRS 61.878(1) and its application to open records requests made by parties in litigation, stated:
That statute does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery. Any other interpretation would allow a nonparty (like the press, which also made a request in this case) to obtain records not exempted, while a party before an administrative agency could not obtain these same nonexempted records because administrative agencies are generally not subject to pretrial discovery. [footnote omitted.]
(Emphasis in original.)
Prior decisions of this office, cited above, are in accord with this language. See, 00-ORD-97. In 00-ORD-62, we discussed the tension that occurs between the Open Records Act and pretrial discovery when the presence of litigation exists:
The tension between the Open Records Act and the Rules of Civil Procedure governing pretrial discovery has been the subject of numerous open records decisions. In 97-ORD-163, the Attorney General summarized the duties of a public agency in responding to an open records request submitted to a party who has sued, or been sued by, the agency, recognizing that the agency "is not relieved of its obligations under KRS 61.880(1) in the presence of litigation . . . " 97-ORD-163, p. 3. The Attorney General also recognized, however, 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. " 97-ORD-163, p.5.
In the Lottery case, the trial court ruled that the Rules of Civil Procedure did not apply to an administrative proceeding before the Division of Unemployment Commission and therefore the Lottery could not use KRS 61.878(1) in denying the request. Thus, the Commission's pretrial discovery rulings and protective order had no effect and could not be used as a basis for denying access to public records that would otherwise be open to public inspection. In the instant case, the Rules of Civil Procedure do apply and the Jefferson Circuit Court has issued Protective Orders staying discovery. KRS 61.878(1) does not operate as a bar to inspection, but the court's protective order clearly does. Both parties are required to obey the orders or be subject to contempt of court or other civil liability. OAG 89-22. For this reason, the Lottery case is factually distinguishable and not controlling in the instant appeal.
As noted above, since the records in question come within the purview of the circuit court's protective orders, we conclude that the agencies, as required to do so by the Protective Orders entered by the Jefferson Circuit Court, properly denied the open records request for agency records that were the subject matter of the orders staying discovery in the two pending cases. To permit otherwise, would allow a party to litigation to use the Open Records Act to do an end run around the circuit court's protective orders.
Since the foregoing is dispositive of this appeal, we need not discuss other basis for denial relied upon by the agencies in it response.
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.
Christina HeavrinLynch, Cox, Gilman & Mahan PSC400 West Main Street, Suite 2200Louisville, KY 40202
John G. CarrollAckerson, Mosley & Yann PSC1200 One Riverfront PlazaLouisville, KY 40202
Russ MapleJefferson County CommissionerJefferson County CourthouseLouisville, KY 40202
Janet HallAssistant Jefferson County Attorney531 Court Place, Suite 1001Louisville, KY 40202