Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Ashland violated the Open Records Act in denying Shane C. Sidebottom's May 23, 2006, request, on behalf of his client the Kentucky Fraternal Order of Police, for "[a] copy of the personal [sic] file of Ashland Police Officer Kenneth Adams." For the reasons that follow, we find that although the privacy argument originally advanced by the city was legally unsupportable, 1 its later argument that the orders staying discovery in the federal action in which Mr. Sidebottom represents four former police officers employed by the Ashland Police Department is persuasive. We therefore conclude that Mr. Sidebottom and his clients are foreclosed from inspecting the requested records by operation of KRS 61.878(1).
In supplemental correspondence directed to this office following commencement of Mr. Sidebottom's appeal, Ashland City Attorney Richard W. Martin explained, by way of factual background:
On July 20, 2005, officers of the Ashland Police Department ("APD") arrested a female on possession of cocaine charges. In the course of an interview with the arresting officer, the subject made allegations about engaging in sexual activities with a number of police officers while on duty. As a result, an administrative investigation was opened and the subject gave a signed, sworn statement to the officer assigned to the administrative investigation.
Thereafter, nine APD officers were suspended with pay and given the 48 hour notice of the intent of the APD to interrogate each officer.
When the 48 hours passed each officer was ordered to submit to an interrogation that could include a polygraph examination. Each officer refused and the Chief of Police opened a second administrative file and filed charges of insubordination with the City Clerk under the provisions of KRS 95.450 and KRS 15.520.
Thereafter four of the officers resigned with those charges pending, four officers admitted to various actions that constituted misconduct while on duty and were disciplined. The ninth officer had a hearing before the Ashland Board of City Commissioners and was terminated. That officer failed to appeal his termination under the provisions of KRS 95.460 and KRS 15.520.
On December 21, 2005, three of the officers that resigned and the officer who was terminated, represented by Shane C. Sidebottom as co-counsel, filed suit against the City of Ashland and various city officials in U.S. District Court, Eastern District of Kentucky, Ashland, Case No. 05-CV-0242 seeking reinstatement with full back pay; compensatory and punitive damages. There is a pending motion to dismiss filed by the Defendants under submission. By Order dated February 21, 2006 discovery is suspended pending ruling on the outstanding motion.
Continuing, Mr. Martin noted that Officer Adams' personnel file contains a complaint alleging similar inappropriate conduct that is alleged to have occurred at an earlier date, and indicates that the complainant in that matter "requested of the city that no information concerning [the] complaint . . . be released to any third party." 2 In closing, he expressed the belief that "the material being requested is an effort by Mr. Sidebottom to circumvent the existing discovery process that has been temporarily suspended in the federal litigation." 3
Unable to resolve this appeal on the record before us, on June 13, 2006, the Attorney General propounded a series of questions to the city aimed at clarifying how disclosure of all or any portion of Officer Adams' personnel file in response to an open records request tendered by the FOP would "circumvent the existing discovery process that has been temporarily suspended in the federal litigation." Pursuant to KRS 61.880(2)(c), we also asked that the city provide us with a copy of Officer Adams' personnel file, and the February 26, 2006, order suspending discovery, for in camera inspection. The city responded to our request by providing us with that portion of Officer Adams personnel file relating to the complaint of misconduct and ensuing investigation, 4 the February 26 order staying discovery, and a June 22, 2006, order extending the stay "pending the outcome of [the] Court's ruling on Defendants' Motion to Dismiss . . . ."
In response to our inquiries, the city expressed the belief:
that counsel wants Officer Adams' file to compare actions taken by the Department relating to Officer Adams in 2002 to the investigation done in the July 2005 matter. In the second letter sent by Mr. Sidebottom regarding his appeal, he states that he makes his reply "on behalf of our clients the Kentucky State Police Lodge (State FOP)." The city is aware from newsletters and websites that the State FOP has financially backed the federal litigation. Mr. Sidebottom represents the Plaintiffs in the federal litigation.
The city subsequently furnished this office with documentation supporting its claim of an identity of interests between the FOP and the plaintiffs in the federal action, all of whom are represented by Mr. Sidebottom.
KRS 61.878(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery[.]
(Emphasis added.) Shortly after this provision was introduced into the Open Records Act, the Attorney General held that it could not generally be invoked by a public agency to deny nonlitigants access to public records that relate to a pending civil action. 94-ORD-19; see also, Department of Corrections v. Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349 (1996). In 95-ORD-18, we reasoned that KRS 61.878(1):
means that should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to that action, and which are protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges the denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion.
95-ORD-18, p. 4.
Nevertheless, this office has recognized that this narrow construction creates the potential for abuse of KRS 61.878(1) . At page 3 of 94-ORD-19, we expressed concern that "litigants may circumvent the provision [KRS 61.878(1)] by securing 'materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery' through individuals who are not parties to litigation." 94-ORD-19 was appealed to the Franklin Circuit Court. The court addressed this concern by holding that KRS 61.878(1) "would apply to anyone attempting to obtain this information for the litigant outside the rules of discovery. " Department of Corrections v. Courier-Journal and Louisville Times Company, Civil Action No. 94-CI-00457, p. 2 (Franklin Circuit Court, July 27, 1994).
On at least two occasions this office has directly addressed the issue "whether KRS 61.878(1) applies to anyone attempting to obtain information for a litigant outside the rules of discovery as well as the litigant himself (or an attorney acting on behalf of a litigant)," and determined that "sufficient objective indicia existed to establish an identity of purpose . . . ." 00-ORD-10, p. 4; see also 99-ORD-92. These "bases" included, in the former decision, a biological and professional relationship between the applicant and the plaintiff in a federal lawsuit to which this applicant's records request directly related. In the latter decision, these "bases" included prior professional associations between the applicant and the litigant, and the fact that the requested records were the same records that the litigant had unsuccessfully attempted to obtain through discovery. Compare, 99-ORD-125 (agency fails to establish that nonlitigant applicant was seeking to obtain records on behalf of litigant, and therefore KRS 61.878(1) was improperly invoked as the basis for denying her access). In each of these decisions, the Attorney General recognized:
KRS 61.878(1) does not establish a blanket prohibition on "a party in litigation from using the open records act instead of the discovery rules to obtain records relating to the litigation." The statute does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant has brought suit or by which he has been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87; 99-ORD-64. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize nondisclosure.
00-ORD-10, p. 6. As noted, the latter rule of law extends to attorneys acting on behalf of a litigant and persons with a substantiated shared interest in the litigation.
The City of Ashland emphasizes that Mr. Sidebottom, who submitted the subject request on behalf of his client, the FOP, represents the plaintiffs in the federal litigation in which discovery has been stayed, and that the FOP "has financially backed the litigation." In support, the city provided this office with an October 27, 2005, letter from a partner 5 in Mr. Sidebottom's firm who identifies himself as the attorney for the four former police officers, as well as the attorney for "the Kentucky State Lodge, Fraternal Order of Police, who voted unanimously to assist their brothers in their dispute with the City of Ashland relating to the egregious violations of the Police Officers' Bill of Rights perpetrated by the City of Ashland on these officers." In addition, the city furnished us with a copy of the November 2005 newsletter from Ashland Lodge # 3 that was mailed to local FOP members, and stated, in part:
The KY State FOP Legal Aid Committee also met with a delegation of the Ashland Lodge # 3 membership composed of Rodney Bowling, David Bocook, and Jeffrey Christian with their Attorney Steve Wolnitzek present. Their Attorney Steve Wolnitzek (who also is the State FOP Attorney) briefed the State Lodge. He requested and the Legal Aid Committee recommended the State Lodge vote to fund any and all uncovered legal expenses for these officers (and any other officers that join them) in the form of a "loan" for the filing of a Federal Law Suit against the City of Ashland. The Suit is in relation to violation of due process rights of these Officers during the suspension of nine APD Police Officers on August 1, 2005. The motion unanimously passed.
Finally, the City of Ashland provided us with a copy of the complaint in the federal litigation identifying Officer Adams as a named individual defendant, and noted that "comments have been made on ashlandwitchhunt.com [a website the city describes as containing 'a running commentary on events surrounding the July 2005 incident'] that he [Officer Adams] received special treatment." The city was unable to provide specific documentation supporting this statement.
Given Mr. Sidebottom's representation of the former officers in the federal suit in which discovery has been stayed, and the FOP in the open records dispute concerning access to records that appear to have some bearing on that suit, as well as the apparent financial relationship that exists between the FOP and the former officers, we again find that "sufficient objective indicia exist to establish an identity of purpose" between Mr. Sidebottom's client, the FOP, and Mr. Sidebottom's clients, the former officers in the pending litigation. 6 Because Mr. Sidebottom cannot obtain the requested records relating to Officer Adams through discovery, the court having entered an order staying same, we find that he cannot obtain those records through the Open Records Act, under the statutory restriction found at KRS 61.878(1), until that order has been lifted. We therefore affirm the City of Ashland's denial of his request on the basis of the cited provision.
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.
Shane C. SidebottomWolnitzek & Rowekamp, P.S.C.502 Greenup StreetP.O. Box 352Covington, KY 41012-0352
Richard W. MartinCorporation CounselCity of AshlandP.O. Box 1839Ashland, KY 41105-1839
Deborah MusserCity Clerk/Records CustodianCity of AshlandP.O. Box 1839Ashland, KY 41105
Footnotes
Footnotes
1 Mr. Sidebottom has, in our view, correctly analyzed the legal issues associated with the impropriety of the city's reliance on KRS 61.878(1)(a) to authorize nondisclosure of records documenting complaints against police officers who are alleged to have neglected their duty to the public by engaging in inappropriate relationships while on duty. Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). We are therefore spared debate on this issue. Resolution of the issue on appeal does not, however, turn on the application of KRS 61.878(1)(a) to the records withheld, but on the application of KRS 61.878(1) to those records.
2 Because our decision is premised on KRS 61.878(1), rather than KRS 61.878(1)(a), we do not address the propriety of the city's reliance on the latter exception to protect the complainant's claimed right of privacy in these records. We do, however, remind the city that unless it can advance a legally defensible argument in support of the complainant's request for anonymity, in light of, or in spite of, Palmer v. Driggers, above, it is not obligated to honor that request. As a party affected by disclosure of public records, the complainant nevertheless has standing to challenge release of the records under the rule announced in Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994).
3 By letter dated June 13, 2006, Mr. Sidebottom questioned the relevance of "the first six paragraphs of the City of Ashland's response, noting that "[t]he State FOP[, on whose behalf he made the request] is not a party to any lawsuit involving the City of Ashland, is not subject to any Discovery Order of the Federal Court, and the City of Ashland cannot deny legitimate open records requests because they are involved in other lawsuits regarding similar subject matter."
4 It is unclear whether the city disclosed the remainder of Officer Adams' file to Mr. Sidebottom, providing us with only the disputed portion, or withheld the file in its entirety under KRS 61.878(1)(a). The latter position would again, in our view, be legally indefensible. Nondisclosure of the entire file is, however, proper under KRS 61.878(1) as applied to the current facts insofar as the order staying discovery absolutely bars disclosure of otherwise publicly accessible records.
5 As noted, Mr. Sidebottom is co-counsel in this matter with Stephen D. Wolnitzek.
6 Although we draw no further inferences from this finding, we note that any other resolution of the issue on appeal would create a potential ethical dilemma for Mr. Sidebottom. The Code of Conduct that is applicable to members of the bar "recognizes that a client is entitled to zealous representation by a lawyer." Leasor v. Redmon, Ky., 734 S.W.2d 462, 466 (1987); see also, SCR 1.3, Comment 1. Were this office to resolve the issue on appeal in his favor, and require disclosure of the requested records to the FOP, Mr. Sidebottom's ability to zealously represent his clients in the federal suit would arguably be impeded by the court's order staying discovery.