Request By:
Larry Montgomery, # 185758, D-211
Little Sandy Correctional Complex
Route 5, Box 1000
Sandy Hook, KY 41171A. Michael Mays, Clerk
Owsley Circuit Court
Courthouse, Main Street
P.O. Box 130
Booneville, KY 41314-0130Henley R. McIntosh
County Attorney
Courthouse, Main Street
Booneville, KY 41314Kimberly C. Hosea
Staff Attorney
Administrative Office of the Courts
Office of General Counsel
100 Millcreek Park
Frankfort, KY 40601-9230
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 Owsley Circuit Court Clerk subverted the intent of the Kentucky Open Records Act short of denial by imposing excessive copying fees in responding to the request of Larry Montgomery for copies of "all of the records, documents and materials" listed (warrant, indictment, discovery, etc.) from his "own personal files." Upon receiving notification of Mr. Montgomery's appeal from this office, Kimberly C. Hosea, Staff Attorney, Administrative Office of the Courts, responded on behalf of the Owsley Circuit Court Clerk. According to Ms. Hosea, the Clerk's Office responded to Mr. Montgomery's request by "providing copies of every pleading/document in the file, save for those which have been ordered sealed" by the court. Absent a court order, the Clerk is not permitted to disclose those records.
Citing Ex parte Farley, Ky., 570 S.W.2d 617 (1978), the AOC correctly argues that "records generated by the courts are not subject to statutory regulation, including [the Open Records Act] ." In addition, the Attorney General has consistently relied upon Ex Parte Farley in holding that "courts and judicial agencies are not bound by the provisions of the [Act]. See, e.g ., OAG 90-4." Accordingly, the Clerk's Office charged Mr. Montgomery "the fee it has been instructed by the Court of Justice to charge under the circumstances, 25 cents per page." With this exception, the Clerk appears to have fully complied with the Open Records Act, despite not being subject to the provisions of the Act.
In our view, 04-ORD-051 and 98-ORD-6, copies of which are attached hereto and incorporated by reference, are controlling on the facts presented. As long recognized by the Attorney General, records in the custody of circuit court clerks are properly characterized as court records to which the Open Record Act does not apply. See 05-ORD-092; 04-ORD-046; 03-ORD-175; 00-ORD-164; 95-ORD-101. Accordingly, circuit court clerks are not subject to the provisions of the Open Records Act. Because the Owsley Circuit Court Clerk is not bound by the Open Records Act, his actions neither subverted the intent of nor violated the Act, although ten cents per page is otherwise considered a "reasonable" charge for copies. 99-ORD-40.
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.