Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Dennis C. Alerding violated the Kentucky Open Records Act in failing to respond upon receipt of the request submitted by his former client, Ronald J. Dwyer, to receive a copy of his entire file. As a private attorney, Mr. Alerding 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" which are open for inspection under 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, 05-ORD-249 and 97-ORD-15 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Although Mr. Alerding may be obligated to produce any records which are responsive to Mr. Dwyer's request pursuant to 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
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 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.