Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Master Commissioner of McCreary County, a quasi-judicial officer who "serves at the pleasure of the [judge or judges of the circuit] court," KRS 31A.010(3) and CR 53.01, is not bound by the provisions of the Open Records Act and therefore did not violate the Act in failing to respond to Nick Belker's October 23, 2002, and October 30, 2002, requests for financial records of the Commissioner's office. We find that 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling.
The Open Records Act governs access to "public records," meaning "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). Although this is an all-encompassing definition, the Kentucky Supreme Court has declared that records generated by the courts and judicial agencies are not subject to the Open Records Act. In Ex parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Court stated that "the custody and control of records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." "Records in the hands of the clerk," the Court noted, "are the records of the court." Farley at 624. This position finds support in KRS 26A.200 and KRS 26A.220. These statutes provide that records which are made by or generated for or received by the courts are the property of the court and are subject to the control of the Supreme Court. Thus, in
York v. Commonwealth, Ky.App., 815 S.W.2d 415, 418 (1991), the Court of Appeals recognized that the Open Records Act "has been held not to apply to court records."
We acknowledge that the cited authorities in general refer to "materials generated by the court incident to its decision-making process," Farley at 626, Note 4, and that financial records of the Master Commissioner do not qualify as such. Further, we recognize that the courts regularly make public records of financial account. Indeed, CR 53.09(2) requires each Master Commissioner to "annually provide to the Executive Department for Finance and Administration a complete accounting for all amounts received and distributed and for all fees collected." However, "[i]t is for the court, and not this office, to determine which policies evinced by the Open Records law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity." 98-ORD-6, p. 2. Mr. Belker's records access dispute must therefore be resolved by the court, and failing this, the Judicial Conduct Commission.
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.
Nick Belker, J.D.Vice PresidentAmericas Business Link, L.L.C.246 Chenoweth Lane, No. 3Louisville, KY 40207-2631
Charles E. KingMcCreary County Master CommissionerP.O. Box 249Pine Knot, KY 42635
Sara DentStaff AttorneyAdministrative Office of the Courts100 Millcreek ParkFrankfort, KY 40601