Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Henry Watz Gardner Sellars & Gardner, PLLC violated the Kentucky Open Records Act in failing to respond to the request of Joseph L. Silverburg for "a copy of any and all executive order[s] from the Governor's Office of Kentucky granting the private law firm of Henry Watz Gardner Sellars & Gardner authority to represent the Commonwealth of Kentucky in Lee Circuit Court in Civil Action No. 04-CI-00008 . . ." Upon receiving notification of Mr. Silverburg's appeal from this office, G. Edward Henry, II, responded on behalf of this private law firm. As observed by Mr. Henry:
It is a private entity and not a state agency and therefore the request is improper for that reason alone.
Secondly, the request presumes that our office represents the Commonwealth of Kentucky in the Lee Circuit Court in the action stated. We do not. We represent Randy Eckman, who was the warden of Lee Adjustment Center, which is a private institution. Therefore, my law firm does not represent the Commonwealth of Kentucky and there is no authorization for us to do so.
Accordingly, the request is improper and there would be no documents [responsive] to it if it were in fact proper.
As a private law firm, Henry Watz Gardner Sellars & Gardner, PLLC does not fall within the definition of a "public agency" to whom the Open Records Act applies codified at KRS 61.870(1), nor can the requested records properly be characterized as "public records" subject to inspection under KRS 61.870(2) since the records were not "prepared, owned, used, in the possession of or retained by a public agency." That being the case, 01-ORD-40, 01-ORD-24, and 97-ORD-15, copies of which are attached hereto and incorporated by reference, are controlling. Given our resolution of this threshold issue, further analysis is unwarranted. Because Henry Watz Gardner Sellars & Gardner is not a "public agency" to whom the Open Records Act applies, its alleged failure to respond does not constitute a violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.