Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Douglas P. Vowels violated the Kentucky Open Records Act in failing to respond upon receiving the request of Richard Swink for copies of specified records relating to Indictment Number 03-CR-016. Upon receiving notification of Mr. Swink's appeal from this office, Mr. Vowels advised this office that he is, and has "been at all relevant times, an attorney engaged in the private practice of law." As such, Mr. Vowels asserts that he is not a public agency within the meaning of KRS 61.870. In our view, 01-ORD-40, 01-ORD-24, and 97-ORD-15, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented.
As a private attorney, Mr. Vowels does not fall within the definition of "public agency" codified at KRS 61.870(1), nor can the requested records properly 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." Although Mr. Vowels may be obligated to produce the requested records under the Rules of Professional Conduct governing attorneys licensed to practice law in the Commonwealth of Kentucky, his failure to do so does not constitute a violation of the Open Records Act. 1 See 04-ORD-215; 04-ORD-165.
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.
Richard Swink, # 166068 D-5Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Douglas P. VowelsP.O. Box 3561120D High StreetBrandenburg, KY 40108
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.
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