Request By:
Herbert Brooks, # 167278 D-5
Northpoint Training Center
P.O. Box 479
Burgin, KY 40310Patrick J. Walsh
319 York Street
Newport, KY 41071
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Patrick J. Walsh violated the Kentucky Open Records Act in failing to respond upon receipt of the request submitted by Herbert Brooks for copies of "all records, tapes and any evidence that you have in your possession regarding case [number] 03-CR-195-1." Upon receiving notification of Mr. Brooks' appeal from the Attorney General, Mr. Walsh advised this office that he was "appointed to represent Mr. Brooks for sentencing purposes only." In addition, Mr. Walsh is "an attorney engaged in the private practice of law." Accordingly, Mr. Walsh does not believe the Open Records Act applies to him. In any event, Mr. Walsh does not have a file in his possession relating to Mr. Brooks. 1
As a private attorney, Mr. Walsh does not fall within the definition of "public agency" codified at KRS 6.1870(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." In our view, 01-ORD-24 and 97-ORD-15, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. Although Mr. Walsh would ordinarily be obligated to produce any responsive records pursuant to the Rules of Professional Conduct governing attorneys licensed to practice law in the Commonwealth of Kentucky, his failure to do so would not constitute a violation of the Open Records Act. 2 Having confirmed that a sufficient nexus does not exist between Mr. Walsh and the Department of Public Advocacy to render Mr. Walsh subject to the Open Records Act, this office leaves for another day the question of whether attorneys engaged in a contractual relationship with the DPA are subject to the Act.
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.
Footnotes
Footnotes
1 As long recognized by the Attorney General, public agencies cannot produce for inspection or copying records which do not exist. See 05-ORD-182.
2 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.