Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Calloway Circuit and District Court Clerk violated the Kentucky Open Records Act in the disposition of James Solomon's written request for a "printout of all payments" that he made to her office in 2000 "on rest[it]ution owed to the Calloway County District Court" on a list of specified cases. By undated response, Deputy Clerk Kim James advised Mr. Solomon that none of the specified cases exist in their system because "[a]nything before the year 2000 was destroyed by AOC [Administrative Office of the Courts]. No detainer should still exists [sic]. Therefore you no longer owe us any money on these cases." Upon receiving notification of Mr. Solomon's appeal from this office, Kelly Stephens, Deputy General Counsel, responded on behalf of AOC/the Clerk, quoting KRS 26A.200, pursuant to which "all records which are made by or generated for or received by any agency of the Court of Justice" are the property of the Court of Justice and are subject to the control of the Supreme Court. Citing Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), AOC correctly asserted that "records of [AOC] are not subject so statutory regulation such as the Open Records Act. " 1
Because records in the custody of circuit and district court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the Attorney General has long recognized that neither circuit nor district court clerks are subject to the provisions of the Open Records Act. Consequently, the Calloway Circuit and District Court Clerk cannot be said to have violated the Act relative to Mr. Solomon's request. In our view, 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2.
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.
James Solomon, # 135190-D-2-33Linda AveryKelly Stephens
Footnotes
Footnotes
1 In any event, AOC confirmed that Mr. Solomon requested copies of records "that have been previously destroyed pursuant to the Court of Justice Retention Schedule." Because court records are not governed by the Open Records Act, discussion of whether the records were properly destroyed is unnecessary; further, the Clerk would not be required to produce nonexistent records or "prove a negative" to refute a claim that certain records exist if the Act did apply. Bowling v. Lexington Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341(2005). See 07-ORD-188; 07-ORD-190.