Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that neither the Kentucky Labor Cabinet nor the Office of the Attorney General violated the provisions of KRS 61.870 to KRS 61.884 in the disposition of Patricia Rose's June 1, 2010, request for information concerning the settlement of a case between her brother and her father's employer, Newport Steel. Ms. Rose's father died from work-related injuries he sustained on October 19, 1982, and she has attempted to ascertain, through a series of open records requests, whether her brother received a settlement from Newport Steel.
The Labor Cabinet responded to Ms. Rose's February 2009 request by providing her with all records in its custody, but indicated that it could not answer her question concerning a settlement to which it was not a party. Although it had no statutory obligation to do so, the Cabinet responded to her June 1, 2010, request for information concerning the suspected settlement by voluntarily conducting a search via Courtnet. The Cabinet explained that it did not maintain records relating to private litigation between a decedent's estate, or a relative of a decedent, and the decedent's employer, and indicated that its voluntary search for the alleged settlement was unsuccessful. In this and Ms. Rose's previous appeal, the Cabinet forwarded copies of correspondence it exchanged with Ms. Rose to the Attorney General.
Ms. Rose apparently assumed that in doing so the Cabinet triggered a statutory duty on the part of the Attorney General to conduct a search for information concerning an alleged settlement between her brother and Newport Steel. This is not the case, and the Attorney General twice notified Ms. Rose that if she wished this office to review the Labor Cabinet's handling of her requests pursuant to KRS 61.880(1) and (2) 1 she must submit a copy of her written request to the Cabinet and a copy of the Cabinet's written response. In response to her June 1, 2010, request, the Attorney General advised Ms. Rose that a search of our civil litigation files produced no records relating to her father, brother, or Newport Steel. As is the case with the Labor Cabinet, the Attorney General does not maintain records relating to private litigation and/or the settlement of private litigation. The Attorney General indicated that it had no record of an open records request from 2009. 2
Clearly, the information Ms. Rose is seeking is not contained in a record that is "prepared, owned, used, in the possession of or retained by" either the Labor Cabinet or the Office of the Attorney General. KRS 61.870(2). The Labor Cabinet's role in investigating workplace injuries is set forth in Chapter 338 of the Kentucky Revised Statutes. The Attorney General's role in open records matters is set forth in Chapter 61 of the Kentucky Revised Statutes. The Attorney General has only the narrowest of roles under Chapter 338 3 that does not include settlement of private ligation. 4 Simply put, neither the Labor Cabinet nor the Office of the Attorney General maintains any records containing the information Ms. Rose seeks. Ms. Rose has been advised on several occasions that neither public agency can answer her question concerning the alleged settlement between her brother and Newport Steel. The Open Records Act does not require the agencies to do more.
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.
Patricia RoseApril L. AbshireDavid ShattuckRyan Halloran
Footnotes
Footnotes
1 KRS 61.880(1) and (2) provide:
(1) Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(2) (a) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
2 As noted, the Attorney General issued two letters to Ms. Rose in 2009 concerning her failure to properly initiate an open records appeal to his office. Open records requests are different from open records appeals as set forth in note 1, above.
3 See KRS 338.191.
4 The "Order Permitting Withdrawal of Notice of Contest and Incorporating Stipulation and Settlement Agreement in Recommended Order" is not a settlement agreement between Ms. Rose's brother and Newport Steel Corporation but is instead a settlement between Newport Steel and the Labor Cabinet, formerly known as the Commission of Labor, regarding a finding of violation by the Cabinet against Newport Steel.