Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Stephen E. Esselman violated the Kentucky Open Records Act in failing to respond to the request of Frederick Brown, a former client, for a copy of his "entire file," including "any and all records, reports or other information pertaining" to him. Attached to Mr. Brown's letter of appeal along with a copy of his request is a copy of the release form authorizing the Department of Public Advocacy and/or Mr. Esselman to release his file and related information "including that which is protected by the attorney-client [privilege] to [him]." As a private attorney, Mr. Esselman does not fall within the definition of a "public agency" to whom the Open Records Act applies found at KRS 61.870(1), nor can the requested records be characterized as "public records" subject to inspection pursuant to KRS 61.870(2) since the records are 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. In light of this determination, further analysis is unwarranted. Although Mr. Esselman may be obligated under the Rules of Professional Conduct governing attorneys licensed to practice law in Kentucky to return Mr. Brown's client file, 1 his failure to do so does not constitute a violation of the Open Records Act.
A party aggrieved by this decision may wish to 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.
Frederick Brown, # 173934Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Stephen E. Esselman119 S. 7th Street, 3rd FloorLouisville, KY 40202
Footnotes
Footnotes
1 SCR 3.130(1.16)(d) provides:
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
Accordingly, Mr. Brown may wish to contact the Kentucky Bar Association for assistance in the event that Mr. Esselman fails to provide him with a copy of his file as requested.