Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pike Circuit Court Clerk violated the Open Records Act in the disposition of Della M. Dotson's February 25, 2004 request for copies of "two video tapes covering two different sessions of District Court: The September 22, 2003 session at which Judge Kelsey Friend, Jr. presided, and the January 13, 2004 session at which The Honorable Judge Darrel Mullins presided. " For the reasons that follow, and based upon authorities as recently issued as February 24, 2004, we find that the Pike Circuit Court Clerk is not bound by the provisions of the Open Records Act and therefore cannot be said to have violated the Act in the disposition of Ms. Dotson's request. Having said this, we remind the parties that the Kentucky Supreme Court has declared that "whatever belongs to the courts belongs to the public," Ex parte Farley, Ky., 570 S.W.2d 617, 625 (1978), and encourage them to work, in a spirit of cooperation rather than rancor, toward an amicable resolution of their records access dispute.
The record on appeal reflects that on February 9, 2004 the Pike Circuit Court Clerk issued a receipt for $ 30.00 to Ms. Dotson for payment tendered for copies of the tapes she had requested. The record further reflects that on February 23, Ms. Dotson returned to the clerk's office and that W. David Deskins, Pike Circuit Court Clerk, was summoned from court to respond to her inquiries relative to her earlier request. Dissatisfied with the clerk's delay in furnishing her with the copies, Ms. Dotson confronted Mr. Deskins in what the record reflects was a heated exchange. Their exchange concluded in an impasse.
On appeal, Ms. Dotson maintains that the Pike Circuit Court Clerk "is a 'Public Agency' as defined in KRS 61.870(1), items a), b), c), e), f), g) . . . [t]hat the video/ audio taped recordings of the proceedings of open session of the Pike District Court constitute a 'public record' as defined in KRS 61.870, subsection (2) [sic], . . . and [t]hat the spirit and the letter of the law as delineated in KRS 61.871 is being thwarted, flaunted and violated by David Deskins' refusal to provide access to the 'Public Records' as requested by [Ms. Dotson]." Although he does not cite the rule number, Mr. Deskins responds that he is authorized by the Rules of the Supreme Court to require greater specificity "as to the nature and number of documents," and that he "turned down [Ms. Dotson's] request because it was [his] call as the elected Clerk of the Court . . . . Judgment call. [His]. Slam dunk." In closing, Mr. Deskins noted that he has "returned her monies by certified mail with a written denial of her request and . . . a copy of the passage . . . from the Rules."
In numerous open records decisions issued by this office through the years, the Attorney General has observed:
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."
02-ORD-235, p. 1, 2 (Master Commissioner of McCreary County is not bound by the provisions of the Open Records Act) ; 02-ORD-24 (Administrative Office of the Courts is not a public agency for purposes of the Open Records Act) ; 98-ORD-6 (Lawrence Circuit Court Clerk did not violate Open Records Act in the disposition of request for court records insofar as "records in the hands of the clerk are records of the court") (copy enclosed) . In February 2004, the Attorney General reaffirmed this position in declaring records of a judicial agency, in this case AOC, beyond the reach of the Act. We emphasized that "disputes relating to court records . . . must be resolved by the Court." 04-ORD-037, p. 4 (copy enclosed) .
However, this office also emphasized the Kentucky Supreme Court's own declaration that "whatever belongs to the courts belongs to the public." Farley at 625, cited in 04-ORD-037, p. 5. Acknowledging that discretion rests with the Pike Circuit Court Clerk to demand greater specificity in the description of court records to be accessed by the public, and indeed to deny access to those records if the request "place[s] an unreasonable burden upon the resources of [his] office," and further acknowledging the limits of our role in resolving disputes involving records of the court, we are nevertheless hopeful that this matter can be amicably resolved through mutual cooperation, thereby facilitating access to records that ultimately "belong [] to the public." Farley at 625.
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.