Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet's Department of Revenue violated the Open Records Act in denying Mark F. Sommer's August 7, 2012, request for any "case pleading (with any/all attachment(s) thereto) put of public record with the Kentucky Board of Tax Appeals, the Franklin Circuit Court, and/or the Kentucky Court of Appeals, in . . . Insight Kentucky Partners II, L.P. v. Commonwealth of Kentucky, Revenue Cabinet, et al. , Civil Action No. 01-CI-01528 (Franklin Cir. Ct., Div. II)" from November 8, 2001, to the date of the request. We find that the Department's reliance on KRS 26A.200(1), KRS 26A.220, and Ex parte Farley, 570 S.W.2d 617 (Ky. 1978) as the basis for withholding the requested records was misplaced and that its denial constituted a violation of the Open Records Act.
In its August 22, 2012, 1 response, the Department asserted that "the requested case pleadings that were filed with the Franklin Circuit Court or the Kentucky Court of Appeals . . . are court records which are subject to the exclusive jurisdiction of the courts." The Department characterized the case pleadings as "the property of the Court of Justice," noting that KRS 26A.200(1) provides:
All public officers, public agencies, or other persons having custody, control, or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with respect to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
In support, the Department cited Ex parte Farley , above, for the proposition that "such records are not subject to statutory regulation, including the Open Records Act. " Additionally, the Department cited 08-ORD-33 and 95-ORD-101 for the proposition that "records of the court system are not subject to the Open Records Act. " It was the Department's position that, "to the extent [it] has copies of court records in its possession, it is subject to the direction of the Supreme Court with respect to such case pleadings" and not to the requirements of the Open Records Act.
Mr. Sommer thereafter initiated this appeal, contrasting the Department's denial of his August 7 request with its denial of a similar request for case pleadings in a named case submitted on the same date. In the second denial, the Department advised him that it:
does not have any documents responsive to this request. Pursuant to the State Agency Records Retention Schedule for Revenue, the case file, which would include the requested pleadings, is only retained by the Department of Revenue for three years after closure of the case, after which time it is transferred to the State Records Center for five years, and then destroyed at the end of the eight (three plus five) year period in 1985.
Mr. Sommer focused on "the differences in the responses received for what are identical requests, albeit the passage of time. "
In supplemental correspondence directed to this office, the Department explained the differences in its responses:
[T]he documents requested concerning the Louisville & Nashville Railroad Co. v. Dep't of Revenue, 551 S.W. 259 260 (Ky. App. 1977) were not in existence at all, nor is there any reason to address what exemptions might apply to nonexistent records. Needless to say, the Department cannot produce a document that has been destroyed. However, even if they were in existence the Department would not be required to provide them pursuant to Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978), the Attorney General's Orders 08-ORD-33 and 95-ORD-101, and KRS 26A 220.
[T]he documents concerning Insight Kentucky Partners II L.P. v. Commonwealth of Kentucky, Revenue Cabinet , Civil Action No. 01-CI-01528 (Franklin Cir. Ct., Div. II), if still in existence, are not required to be provided pursuant to KRS 26A.220, the Kentucky Supreme Court's decision in Ex Parte Farley 570 S.W.2d 617 (Ky. 1978) and the Attorney General's Orders 08-ORD-33 and 95-ORD-101. Further, this case was never filed with the Kentucky Board of Tax Appeals and so there were no files from that forum. This information was provided to Mr. Sommer in the Department's response dated August 22, 2012.
Although the Department did not violate the Open Records Act in denying Mr. Sommer access to pleadings from Louisville & Nashville Railroad Co. that were destroyed in a manner consistent with the applicable records retention schedule, 2 a denial which Mr. Sommer does not contest, we find that the Department violated the Act in failing to confirm or deny the existence of pleadings relating to Insight Kentucky Partners II, L.P. , and, if the pleadings exist, 3 in failing to articulate a legally recognized basis for denying Mr. Sommer access to the pleadings in its custody and control. 4 The authorities cited by the Department in support of its denial of Mr. Sommer's request are inapposite.
In 10-ORD-060, this office considered the Department's denial of a similar request, submitted by Mr. Sommer, for case pleadings "put of public record . . . with the Kentucky Board of Tax Appeals, the Franklin Circuit Court, and/or the Kentucky Court of Appeals" in a named case for a specified period of time. The Department denied Mr. Sommer's request, asserting that the Board of Tax Appeals, and not the Department, was the "primary custodian" of the requested pleadings. At page 3 of 10-ORD-060, we rejected the Department's argument declaring:
[A]n agency cannot argue it is not the custodian of its own records. The statutory language does not authorize a public agency to deny access to public records in its possession, as the DOR did in its initial disposition of Mr. Sommer's request, based on an assertion that another agency is the "primary custodian" of those records.
As we stated in 09-ORD-107, at page 4:
The mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt. Cf. 98-ORD-100 (discounting the concept of "casual possession").
Moreover, "there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " OAG 91-21, p. 4. The case pleadings in question were "public records" under the definition in KRS 61.870(2), which extends to "documentation, regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) Consequently, if the DOR possessed the requested file, it was subject to the Open Records Act , and thus the DOR's initial response was substantively deficient.
(Emphasis added.) This analysis applies with equal force to the appeal before us.
Neither KRS 26A.200(1) nor KRS 26A.220 purport to wrest control of public agency records from the agency, or relieve the public agency of its statutory duties under the Open Records Act, simply because the records are submitted to the courts in cases before them. Those records maintained by the courts, for the courts, in the discharge of the courts' duties, are court records subject to the courts' control. Duplicates of those records maintained by a public agency, for the public agency, in the discharge of the public agency's duties are records of the public agency, and, unless excluded from public inspection by one or more of the exceptions found at KRS 61.878(1)(a) through (n), subject to inspection under the Open Records Act.
The authorities cited by the Department do not support its position. For example, Ex parte Farley , above, involved an unsuccessful effort to secure access to "materials generated by the court incident to its decision-making process." Id. at 624. The Court reasoned that "the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation, " including the Open Records Act. Id. Such records are clearly distinguishable from case pleadings maintained by public agencies. So, too, are the records at issue in 95-ORD-101 and 08-ORD-033. In the first of these open records decisions, the Attorney General found that because the Monroe Circuit Court Clerk was not bound by the requirements of the Open Records Act, she could not be said to have violated the Act in failing to honor an inmate's request for a trial transcript. In the second decision, the Attorney General determined that, as an agency of the court, the Kentucky Bar Association was not subject to the Act and that its refusal to honor a request for records relating to a complaint against an attorney could not be said to have violated the Act. Neither decision has ever been construed to relieve a public agency, as defined in KRS 61.870(1), 5 of its statutory duties under the Open Records Act when presented with a request for public records in its custody that were submitted to, or received by, and therefore also resided in, the courts. Here, as in 09-ORD-107, "the case pleadings in question were 'public records' under the definition in KRS 61.870(2) . . . [and] subject to the Open Records Act . . . ." The Department's refusal to honor Mr. Sommer's request therefore constituted a violation of the Act.
At this juncture, the Department has neither confirmed nor denied the existence of its case file in Insight Kentucky Partners II L.P. v. Commonwealth of Kentucky, Revenue Cabinet , above. It has advised Mr. Sommer that its case file in Louisville & Nashville Railroad Co. v. Department of Revenue was destroyed after the applicable records retention period expired and that his request for the pleadings in that case cannot be honored. Mr. Sommer is entitled to the same unequivocal statement that the former case file does or does not exist, and, if it still exists, to a copy of the case pleadings identified in his August 7 request.
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.
Distributed to:
Mark F. SommerSarah E. PenceStephen G. Dickerson
Footnotes
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