Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the CASA Program of Bracken, Fleming and Mason Counties, Inc. violated the Kentucky Open Records Act in denying the request of Steven Farmer for copies of various reports prepared by CASA regarding N.F., the minor whose records Mr. Farmer wishes to access. 1 More specifically, the question presented is whether CASA is a "public agency" for purposes of the Open Records Act. Based on the following authorities, it is the decision of this office that CASA is not a "public agency" within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act. In addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested "except in conferring with or reports to the court . . ." pursuant to KRS 620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). Accordingly, CASA did not violate the Act in denying Mr. Farmer's request.
By letter dated September 15, 2004, Mr. Farmer requested copies of the reports filed by CASA volunteer Linda Butcher on June 29, 2004, and August 24, 2004, as well as the report filed by Executive Director Brie Bickley on August 3, 2004. Having allegedly received no response, Mr. Farmer initiated this appeal in a letter received by this office on December 6, 2004. 2 Upon receiving notification of Mr. Farmer's appeal, Heidi Schissler responded on behalf of CASA. According to Ms. Schissler:
1. CASA is not a public agency-CASA[,] which stands for Court Appointed Special Advocate[,] is established by the Chief District Judge or family court judge within each judicial district to "provid[e] an independent, efficient and through representation for children who enter the court system as a result of dependency, abuse and neglect [.]" Individuals in the community become volunteers and are appointed by the Court in dependency, abuse and neglect cases to advocate for the child in court. Therefore, CASA does not meet any of the specific statutory [definitions delineated] in KRS 61.870(1). The closest fit between CASA and the statute is KRS 61.870(1)(e), which states that a public agency means "every state or local court or judicial agency." However, the Courts and court agencies are not subject to the Open Records Act. Ex parte Farley, Ky., 570 S.W.2d 617 (1978); York v. Commonwealth, Ky. App., 815 S.W.2d 417 (1991).
2. Even if CASA is found to be a public agency, the documents requested by Mr. Farmer are confidential and thus exempted from inspection. KRS 61.878(1)(l). As part of the CASA's advocacy, the volunteer prepared a written report for the Judge and presents it to the Court. These are the report[s] that Mr. Farmer is requesting. KRS 620.505(8) requires that the CASA volunteer "keep confidential all information related to the appointed case except in conferring with or reports to the court . . ." In addition, as the CASA volunteers are appointed by and receive their power from the Court, their records and reports are court records and therefore, confidential. KRS 610.340.
In a facsimile December 10, 2004, Kimberly Leet Razor, pro bono counsel for CASA, elaborates on its position. In her view, the Open Records Act does not apply to CASA for the following reasons:
First, [her] client is not a public agency as defined by KRS 61.870(1). See OAG [84-237] (nonprofit corporation created by Chapter 273 is not a public agency subject to the Open Records Act) . Although [CASA] is an agency of the court, it is not a public agency. See OAG [91-47] (Kentucky Bar Association is an agency of the court and is not a public agency) . . . . Finally, [CASA] operates a volunteer organization which advocates for children in juvenile dependency, abuse and neglect cases which are strictly confidential cases, meaning that even [those] court files located in the clerk's offices are not subject to public review. See KRS 610.340.
Although this appeal presents an issue of first impression, the Kentucky Supreme Court has expressly held "that the custody and control of the 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. " Farley, supra, at 624. Relying upon this language, the Attorney General has long recognized that neither the courts nor judicial agencies are subject to the Open Records Act, except to the extent that its provisions do not conflict with the rules and regulations of the Court governing access to its records, and are accepted by the Court as a matter of comity. 04-ORD-037, p. 3; OAG 78-262. Because the requested records were generated by CASA, a judicial agency, Farley and its progeny are determinative.
Pursuant to KRS 620.505.(1):
For the purpose of providing an independent, efficient, and thorough representation for children who enter the court system as a result of dependency, abuse, or neglect, there may be established a court-appointed special advocate program by the chief judge of family court, or, if none, then by the Chief District Judge. (Emphasis added).
Even a cursory review of the statutory scheme governing CASA further confirms the pervasive role played by the courts with respect to this program. For instance, KRS 620.505.(9) provides: "CASA volunteers shall be appointed by the presiding judge to represent the best interest of the child, subject to judicial discretion, . . . " (Emphasis added). Secretarial and support services for each CASA Program "may be provided by the family court, the District Court, the circuit clerk, or a combination thereof, as ordered by the chief judge of family court, or, if none, then by the Chief District Judge." KRS 620.510.(1). Likewise, the Administrative Office of the Courts may provide such services. Id. As evidenced by the literal language of these provisions, CASA is properly characterized as an agency of the Court of Justice. 3 However, the analysis does not end there, as every "state or local court or judicial agency" is a "public agency" unless the context requires otherwise. KRS 61.870(1)(e).
Resolution of this appeal turns on KRS 26A.200, KRS 26A.220, and Ex parte Farley, as applied to the requested records. As noted, in Farley the Supreme Court held that records generated by the courts are not subject to statutory regulation, including the statutory scheme codified at KRS 61.870 to 61.884, commonly known as the Open Records Act. Acknowledging that most public records should be and are open to public inspection, and that the General Assembly ordinarily expresses public policy in such an area, the Court distinguished records "that belong to the courts," citing KRS 26A.200. Farley, supra, at 625. Nonetheless, the Court did not retreat from the position that "whatever belongs to the courts belongs to the public." Id. There is "very little in the policies evinced by the Open Records Law" that the Court "could not accept as a matter of comity. " Id. Some details of the Open Records Act, however, "present interferences" that the Court regards "as inconsistent with the orderly conduct of [its] own business, and those [the Court does] not accept." Id. 4 In a line of decisions dating back to 1978, the Attorney General has relied upon Farley in concluding that courts and judicial agencies such as CASA are not bound by the Open Records Act except to the limited extent previously indicated. 02-ORD-24; 97-ORD-138; 96-ORD-173; 95-ORD-89; 93-ORD-47; OAG 91-45; OAG 85-9; OAG 79-174; OAG 78-262.
Our position is consistent with KRS 26A.200 and KRS 26A.220, both of which are incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). 5 KRS 26A.200 provides that all records "which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court" are the property of the Court of Justice "and are subject to the control of the Supreme Court." Court records have therefore been accorded a unique status, and remain under the exclusive jurisdiction of the Court. OAG 90-4; OAG 87-53; OAG 85-9; OAG 78-262. To this end, KRS 26A.220 provides:
All public officers, public agencies, or other persons having custody, control or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
In analyzing the interplay between these provisions and the Open Records Act, the Court observed:
[W]ith respect to records that belong to the courts and are a part of their ongoing work, the only conclusion consistent with the constitutional right of control over their own records is that the public policy [concerning access to public records] must be articulated by the courts themselves. We do not believe that this viewpoint represents any actual conflict with the policy intended by the General Assembly itself. KRS 26A.200, which was enacted at a later date than was the Open Records Law, implicitly recognizes it. As a matter of fact, KRS 26A.200 was drafted by AOC.
Farley, supra, at 625. 6 See also
York v. Commonwealth, Ky. App., 815 S.W.2d 415, 417-418 (1991) (KRS 61.870, the only statute which specifically includes courts within its definition of "public agency, " has been held not to apply to court records."). In short, KRS 26A.200 and KRS 26A.220, the "subsequent and specific" statutes, control.
Here, the reports at issue clearly constitute records which "belong to the courts and are a part of their ongoing work," as evidenced by KRS 620.525.(2). Accordingly, CASA volunteers must "keep confidential all information related to the appointed case" except in reports to the court pursuant to KRS 620.505.(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). KRS 26A.200 and 26A.220 encompass all records of the courts and judicial agencies, and CASA is an agency created and supervised by the court. Because the reports are prepared by CASA, a judicial agency, and are generated for and received by the court, the reports are "subject to the control of the Supreme Court." KRS 26A.200. To hold otherwise would defy both logic and precedent.
In Ex parte Farley, the Supreme Court expressly recognized that AOC is "part and parcel of the judicial department of the state . . . [and,] in fact, inseparable from the office of the Chief Justice itself." Id. at 620. Records generated by and for AOC are indisputably records of the Court. Accord 02-ORD-24; See also OAG 79-174 and OAG 85-9 (Kentucky Board of Bar Examiners is not a public agency for purposes of the Open Records Act) ; OAG 91-45 (Judicial Retirement and Removal Commission, now the Judicial Conduct Commission, is not a public agency for purposes of the Open Records Act) ; OAG 91-47 and 93-ORD-47 (Kentucky Bar Association is not a public agency for purposes of the Open Records Act) . It is for the Court, not this office, to determine which policies evinced by the Open Records Act "present interferences" with the orderly conduct of its business, and which policies it will accept "as a matter of comity. " Simply put, issues concerning access to records of the court, including records generated by CASA, must be resolved by the Court.
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.
Distributed to:
Steven FarmerP.O. Box 603Dyersburg, TN 38025-0603
Brie BickleyExecutive Director CASA ProgramMason County Judicial Building100 West 3rd StreetMaysville, KY 41056
Kimberly L. RazorMacDonald, Walton & Razor, PLLC105 North Main Cross StreetFlemingsburg, KY 41041-1396
Footnotes
Footnotes
1 KRS 620.500.(4) provides:
"Court-appointed special advocate program" and "CASA program" mean a program by which trained community volunteers are provided to the court for appointment to represent the best interests of children who have come into the court system as a result of dependency, abuse, or neglect [.]
KRS 620.500.(5) provides:
"Court-appointed special advocate volunteer" and "CASA volunteer" mean a person who completes training through and is supervised by a CASA program and appointed by a judge to represent the best interests of dependent, abused, and neglected children in court[.]
Pursuant to KRS 620.525(2): The CASA volunteer shall:
(b) Submit a written report and recommendation to the judge for consideration in determining the best interest of the child at the dispositional hearing, dispositional review hearings, other hearings as requested by the court, and at least one (1) report every six (6) months for as long as the case is assigned to a CASA volunteer [.]
2 According to CASA, it "first saw this request on December 7, 2004," attached to the "Notification to Agency of Receipt of Open Records Appeal" sent by this office. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has long recognized:
This office cannot, with the information currently available, adjudicate a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. . . . Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; 04-ORD-205. Likewise, the record on appeal does not contain sufficient information concerning the actual receipt and delivery of Mr. Farmer's request upon which to base a determination regarding this discrepancy. Even assuming that our determination regarding the status of CASA did not render the issue moot, further analysis of this procedural issue would be unwarranted since CASA responded in a proper and timely fashion upon receiving Mr. Farmer's request.
3 When called upon to render a decision involving statutory interpretation, this office is required "to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, we must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
4 By way of example, the Court cites KRS 61.876, requiring public agencies to adopt and post rules and regulations, KRS 61.880, dictating the procedure for agency response, and the exceptions codified at KRS 61.878.
5 KRS 610.340 further validates this position. In relevant part, KRS 610.340 provides:
(1) (a) Unless a specific provision of KRS Chapters 600 to 645 specifies otherwise, all juvenile court records of any nature generated pursuant to Chapters 600 to 645 by any agency or instrumentality, public or private, shall be deemed to be confidential and shall not be disclosed except to the child, parent, victims, or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070 unless ordered by the court for good cause.
Reports prepared by CASA volunteers for the court's consideration clearly fall within the parameters of this provision.
6 The General Assembly "is presumed to be aware of the existing law at the time of enactment of a later statute." Stogner, supra, at 835. Accordingly, "if two statutes involving the same subject matter are in irreconcilable conflict, the later statute controls." DeStock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952, 958 (1999). Of particular relevance here, "when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the subsequent and specific statute will control." Stogner, supra, at 835, citing Commonwealth v. Brasher, Ky. App., 842 S.W.2d 535, 536 (1992).