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 Taylor County Board of Education violated the Open Records Act in denying Central Kentucky News-Journal Editor Rebecca Cassell's February 21, 2007, request for "copies of records with regard to the recent settlement agreement entered in Taylor Circuit Court in case 04-CI-213, which was brought by Katherine J. Moss against the . . . Board . . . ." For the reasons that follow, and upon the authorities cited, we find that because the settlement agreement, and any record related thereto, is a record that is "prepared, owned, used, in the possession of, or retained by a public agency, " it is a public record for open records purposes and must be disclosed to the public upon request unless it qualifies for exclusion under one or more of the exceptions to the Open Records Act. However, given the existence of the Taylor Circuit Court's February 8, 2007, order sealing the record and directing the Board to "strictly adhere to the confidentiality provisions contained in the Confidential Settlement Agreement and Release," the issue of public access to the agreement, and related documentation, must be resolved by the court regardless of where the record currently resides.
In a response dated March 2, 2007, 1 Taylor County Board of Education Superintendent Gary N. Seaborne denied Ms. Cassell's request. He relied on OAG 01-6, an advisory opinion of this office, 2 which he construed to "h[o]ld in relevant part, that a school district properly denied an open records request for a copy of a settlement agreement where the court had entered an order placing the terms of dismissal and terms of the settlement agreement under seal, [and] . . . not[ing] that [the Attorney General] had no authority under the Open Records Act to override a court order placing the record under a seal of confidentiality. " We disagree with the Board's interpretation of OAG 01-6 and find that, in the absence of proof that the disputed settlement agreement and related records are protected from disclosure by one or more of the statutory exceptions, these records are nonexempt public records. Nevertheless, the issue of access to these records must be resolved by the court.
To begin, the Attorney General did not hold that the school district properly denied an open records request for a copy of a sealed settlement agreement in OAG 01-6. The question of access to sealed settlement agreements was not presented to us in the posture of a dispute between a school district and an open records requester under KRS 61.880(2), but as a request for an advisory opinion from a state representative under KRS 15.020 and 15.025. Moreover, although we recognized the limits of our authority under KRS 61.880(2) vis-a-vis records sealed by a court, in OAG 01-6 the Attorney General conclusively determined that "a settlement agreement between a party litigant and a school district, sealed or unsealed, is a public record and cannot be withheld from public disclosure unless the document is properly excluded from disclosure by one or more of the applicable exceptions of KRS 61.878(1)[(a) through (n)] of the Open Records Act or other applicable law." OAG 01-6, p. 2 (emphasis added). Amplifying on this position, the Attorney General observed:
If the settlement agreement is sealed by order of a court, the question of whether the document is subject to public inspection must be raised in the judicial system. The burden of showing that the record is exempt from disclosure falls upon the public agency or the affected party.
Our opinion turned, in large part, on the Kentucky Supreme Court's holding in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997).
Fundamental to the Court's holding in Lexington Herald-Leader, above, was the recognition that "[t]here could be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is not a public record. " Id. at 471, citing KRS 61.872(1) and Courier-Journal & Louisville Times Co. v. McDonald, 524 S.W.2d 633, 635 (Ky. 1974) ( holding that "the payment of city funds . . . is a matter with which the public has a substantial concern, against which little weight can be accorded to any desire of the plaintiff in that suit to keep secret the amount of money he received"). 3 Recognizing that KRS 61.878(1)(a) was the exception most commonly relied upon to support nondisclosure of settlement agreements, the Court then undertook a privacy analysis of settlement agreements, weighing the public's interest in disclosure of the agreements against the privacy interests implicated, and concluded that "the privacy claim here is simply insufficient to overcome the public's right of access to information [contained in a settlement agreement] ." Lexington Herald-Leader at 472. The Court reasoned:
In balancing the sacrosanct right of an individual to privacy against legitimate public concerns and the right of the public to inquire into the workings of government, we find that a settlement of litigation between private citizens 4 and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize.
Id. at 473. 5 In light of Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., above, and OAG 01-6, we find that the settlement records which Ms. Cassell requested are public records, and that, in the absence of any claim by the Board that the settlement agreement raises legitimate concerns for personal privacy that are superior to the public's interest in disclosure, they are not exempt from public inspection.
Because the terms of dismissal and settlement agreement between the Taylor County Board of Education and Ms. Moss were placed under seal by the Taylor Circuit Court in an order issued on February 8, 2007, we believe that "the question of whether the document[s] [are] subject to public inspection must be raised in the judicial system. " OAG 01-6, p. 3. Consistent with the views expressed in that advisory opinion, we further believe that "[t]he burden of showing that the record is exempt from disclosure falls upon the public agency [the Taylor County Board of Education] or the affected party [Ms. Moss]." Id. The presumption of openness which informs the Open Records Act extends to the disputed records and militates in favor of disclosure. To the extent that this conclusion is inconsistent with prior open records decisions of this office, they are hereby modified.
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.
Rebecca Cassell
Gary N. Seaborne, SuperintendentTaylor County Board of Education1209 East BroadwayCampbellsville, KY 42718-1549
Regina A. JacksonEnglish Lucas Priest & Owsley1101 College StreetP.O. Box 770Bowling Green, KY 42102-0770
Footnotes
Footnotes
1 No explanation is offered for the Board's failure to issue a timely written response to Ms. Cassell's request. We urge the Board to review KRS 61.880(1) to remediate this violation and to insure that future responses conform to the procedural requirements of the Open Records Act.
2 An advisory opinion of the Attorney General (OAG) is distinguishable from an open records decision of the Attorney General (ORD). An advisory opinion is governed by KRS 15.020 and 15.025, and "is highly persuasive, but not binding on the recipient." York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991) citing 7 Am.Jur.2d Attorney General § 11 (1980). An open records decision is governed by KRS 61.880, and has "the force and effect of law" if not appealed to the appropriate circuit court within thirty days from the date the Attorney General renders his decision. KRS 61.880(5)(b).
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3 The record on appeal is inconclusive on the issue of whether the settlement between the Taylor County Board of Education and Ms. Moss involved the expenditure of public funds. If the settlement did not involve the expenditure of public funds, this factor might militate against unsealing the agreement.
4 The public's concern relative to settlement of litigation is just as great, if not greater, in our view, if the settling parties are a public agency employee and a public agency.
5 The Court did, however, "recognize that in some cases there may be a legitimate concern for personal privacy which would be sufficient under the Act." Id. Under these circumstances, the Attorney General would, of course affirm a school district's denial of an open records request for such a settlement agreement on the basis of KRS 61.878(1)(a). Again, the Board fails to make any claim in this regard relative to the disputed records.
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