Request By:
Stephen Mann
Gary W. Moore
Robert D. Neace
Bryan R. Perkins
Blair G. Schroeder
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Boone County Fiscal Court violated the Open Records Act in denying Stephen Mann's October 8, 2007, request for "records pertaining to the settlement from Christine Heckel v. Boone County (Kentucky) Sheriff." For the reasons that follow, we find that the agency violated the Act in denying Mr. Mann's request.
Specifically, Mr. Mann submitted a request to the Boone County Fiscal Court Clerk, requesting copies of the following records:
Any and all records pertaining to the settlement from Christine Heckel v. Boone County (Kentucky) Sheriff, [t]o include the amount of the settlement, the Boone County Fiscal Court check number, a copy of the check and the date of same. Also, please include what fiscal year budget it was paid out of and the specific line item. What is the name of insurance company that paid this settlement or were general funds used to pay this settlement?
After receipt of notification of Mr. Mann's appeal, the Fiscal Court, by letter dated March 17, 2008, advised this office that it had received Mr. Mann's request on October 9, 2007, and responded to it on October 12, 2007. The Fiscal Court indicated that its response to Mr. Mann advised him of the following:
There was no settlement paid from the Boone County Fiscal Court general fund, nor were there any payments made from any Insurance Company. Therefore there were no checks to reference or copies available to Mr. Mann.
As it relates to Mr. Mann's request of any and all other records pertaining to the settlement agreement, the County deemed that due to the personal nature of the settlement agreement release of these records would violate KRS 61.878(1)(a) because the disclosure thereof would constitute an invasion of personal privacy. In addition, the settlement agreement was deemed "confidential" by all parties thereto.
The question presented in this appeal is whether the Boone County Fiscal Court's disposition of Mr. Mann's request for "records pertaining to the settlement from Christine Heckel v. Boone County (Kentucky) Sheriff," violated the Open Records Act. For the reasons that follow, we find that the settlement agreement, and any record related thereto, notwithstanding a confidentiality agreement, is a public record for open records purposes and must be disclosed to the public upon request. The Fiscal Court's bare claim that due to the personal nature of the settlement agreement, the disclosure of it and other records pertaining to the settlement agreement would constitute an unreasonable invasion of personal privacy "is simply insufficient to overcome the public's right of access to information of this type."
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, 941 S.W.2d 469, 472 (Ky. 1997). "[A] confidentiality clause reached by the agreement of parties to litigation cannot in and of itself create an inherent right to privacy superior and exempt from the statutory mandate for disclosure contained in the Open Records Act. " Id. at 472, 473. Accordingly, we find that the agency's denial of access to the requested records constituted a violation of the Open Records Act.
The public policy of the Open Records Act is articulated in KRS 61.871. That statute provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
This office and the courts have long recognized that settlement of litigation by a governmental entity, which may involve the expenditure of public funds, is a matter of legitimate public concern which the public is entitled to scrutinize.
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, supra; 00-ORD-5.
In Lexington-Fayette Urban County Government, supra, the Kentucky Supreme Court recognized that such a settlement agreement was a public record. At issue in that case was whether the urban county government had violated the Open Records Act in denying an open records request for unredacted copies of three final settlement agreements in which the government agreed to pay litigants in lawsuits against the police department. The government relied in part on confidentiality clauses in two of the three agreements whereby the settlement recipients and their attorneys agreed not to disclose any terms of the agreements. Addressing the denial of unredacted copies issue, the Kentucky Supreme Court, at page 471, stated:
There 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. KRS 61.872(1) provides in part that "all public records shall be open for inspection by any person" and we think of no construction of this language which would permit exclusion of an agreement of the type at issue here. In fact, even before enactment of the Open Records statute, we held in Courier-Journal & Louisville Times Co. v. McDonald, 524 S.W.2d 633 (Ky. 1974), 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." Id. at 635. Thus, the government is without any basis upon which to claim a right of privacy, and unless the documents are excluded from disclosure by one or more of the specific provisions of the Act, they must be produced. KRS 61.871.
Typically, the provision relied upon by persons wishing to prevent disclosure is KRS 61.878(1)(a) which excludes "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The Supreme Court concluded that the government's claimed right to privacy under authority of KRS 61.878(1)(a) to support nondisclosure of the settlement agreements containing confidentiality clauses was not sufficient to overcome the public's right to freely and openly investigate the payment of public funds as compensation for government-inflicted injuries. Id . at 472. The court adopted the reasoning of the Court of Appeals in its analysis of the agreements:
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 and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize. A confidentiality clause in such an agreement is not entitled to protection. . . .
Id . at 473. In reaching its conclusion, the court stated:
After weighing the competing interests, we must conclude that the privacy claim here is simply insufficient to overcome the public's right of access to information of this type. Addressing this question, the Supreme Court of Alaska in Anchorage School District v. Anchorage Daily News, 779 P.2d 1191 (Alaska 1989), invalidated a confidentiality agreement on the grounds of public interest in disclosure.
We recognize the important public policy served by those measures which encourage settlement . . . . We recognize also that some litigants are unwilling to settle unless terms of settlement remain confidential, and that a municipality's inability to assure confidentiality may, therefore, adversely affect its ability to negotiate a settlement. Nevertheless, the specific statutory provisions upon which the Daily News relies reflect a policy determination favoring disclosure of public records over the general policy of encouraging settlement. The people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to this type of information than that it remain confidential . Thus, we hold that a public agency may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential.
Id. at 1193.
Prior decisions of this office have also addressed the issue of whether a confidentiality clause reached by agreement of governmental entity and the party litigant is subject to public inspection. In 00-ORD-5, we held that a confidentiality clause reached by agreement of the Danville Independent School District and a party litigant could not in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act. We rejected the school district's argument that KRS 61.878(1)(a), along with the confidentiality clause appearing in the settlement agreement, authorized its nondisclosure. In reaching that conclusion, we noted that review of the settlement agreement revealed little if anything in the agreement which would cause [the former employee] such serious personal embarrassment or humiliation that it would overcome the presumption of openness and that the [former employee's] desire "to keep secret the amount of money [she] received," or the terms of the settlement, can be accorded little weight. Quoting from 98-ORD-24, we stated:
An agency "may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential. " Id. citing Anchorage School District v. Anchorage Daily News, 779 P2d 1191, 1193 (Alaska 1989).
Finding that the contents of the settlement agreement did not contain sufficient information of a personal nature to overcome the presumption of openness, we held that neither KRS 61.878(1)(a) nor the confidentiality clause authorized nondisclosure of the settlement agreement. In 95-ORD-61, at p. 5, we observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, [footnote omitted] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial does not satisfy the burden of proof imposed on the agency.
In the instant appeal, the Fiscal Court does not identify, with any degree of specificity, the nature of the privacy interests implicated by the records at issue. It's bare assertion that the requested documents are exempt under KRS 61.878(1)(a) due to the personal nature of the settlement agreement and other records pertaining to it is insufficient to satisfy the agency's statutorily assigned burden of proof. In the absence of more particularized proof relative to the privacy interest involved, we conclude the agency fails to establish that the public's interest in release of the requested records is outweighed by the individual's privacy interest in withholding the record under KRS 61.878(1)(a). Disclosure of such records serves the principal purpose of the Open Records Act by enabling citizens to be informed as to what the agency is doing in the discharge of its duties. Accordingly we find that the Fiscal Court's reliance on KRS 61.878(1)(a) in denying Mr. Mann's request was misplaced and conclude the agency's denial of access to the settlement agreement, and records related thereto, notwithstanding a confidentiality agreement, constituted a violation of the Open Records Act.
In response to Mr. Mann's request for records indicating the amount of the settlement paid out of the Boone County Fiscal Court general fund or the insurance company that paid the settlement, the agency advised there was no settlement paid from either the general fund or from any insurance company and thus there were no checks to reference or copies available to Mr. Mann. Although Mr. Mann alleges that public funds were expended in the settlement of this litigation, he presents no reliable evidence to support this claim, and we are not prepared to accept an entry on a blog as reliable evidence. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The Fiscal Court discharged its duty under the Open Records Act by affirmatively so advising and explaining why the requested documents did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Finally, the Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed.
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
A portion of Mr. Mann's request was for information, rather than for a precisely described record. If he has not already done so, Mr. Mann should amend his request to provide a reasonably particular description of the records containing the information he wants to access.
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.