Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Charles Edward Hutsell's August 9, 2012, request for "a copy of any and all warrants associated with me, the arrest of 6/17/10 or . . . federal case number [10-cr-78-KSF-CJS-20]." By letter dated August 22, 2012, KSP Legal Counsel Morgain M. Sprague denied the request, advising Mr. Hutsell that "the Order attached to your letter denied your motion to compel production of the documents that you requested and is not persuasive in regards to production of these records." 1 Reiterating the agency's May 16, 2012, response to his nearly identical May 8 request, KSP denied Mr. Hutsell's August 9 request based exclusively on a Protective Order issued by the United States District Court, Eastern District of Kentucky, a copy of which KSP had also enclosed with its May 16 denial for his review, at which time KSP had further noted that "all records related to this matter are protected by this order."
Upon receiving notification of Mr. Hutsell's appeal, Ms. Sprague provided this office with a copy of the June 29, 2012, Protective Order signed by Judge Karl Forester in reference to Mr. Hutsell's criminal case, U.S. v. Mal Walton, et. al, Criminal Action No. 10-78-KSF. She noted that Mr. Hutsell has been provided copies of this Protective Order "on numerous occasions but neglected to include his enclosure with the documents he attached to his appeal." Although KSP is "uncertain why the Court was unable to locate this protective order" in ruling on Mr. Hutsell's "civil request," Ms. Sprague continued, it was "obviously filed by Judge Forester and KSP relied upon this document in its denial. The file and date stamp is affixed to the top of the pages and it is signed by Judge Forester."
The District Court issued the Protective Order upon which KSP relied in response to a motion by the "government, pursuant to Rule 16(d)(1), . . . for an order protecting certain sensitive documents from copying, dissemination, and disclosure [.]" Specifically, the Court ordered that:
(1) defense counsel maintain the disclosed information in their possession, the possession of their office; or in the possession of their defense team, to include defense experts and investigators;
(2) defense counsel shall allow the Defendant access to the documents for reading only, and that neither the Defendant, nor any other third party , be allowed to take the documents where they could be introduced into the inmate population of any pre-trial detention center or where additional copies could be made; and
(3) that, upon conclusion of the trial and any appeal herein, the existing copies of the materials provided be returned to the government.
(Emphasis added.)
In relying exclusively upon the referenced Protective Order, and presumably the italicized language in particular, KSP implicitly followed a line of prior decisions by this office recognizing that entry of an order by a court of competent jurisdiction prohibiting disclosure of public records 2 that would otherwise be accessible under the Open Records Act, unless exempt under one or more of the statutory exceptions codified at KRS 61.878(1), removes all records within the purview of that order, and parties bound by the order, from application of the Open Records Act. See OAG 89-22; OAG 91-121; 94-ORD-139; 01-ORD-95; 05-ORD-066; compare 94-ORD-19; 96-ORD-244; 05-ORD-185. However, the instant appeal differs from those in which deference was consistently granted insofar as the public agency, KSP, is not expressly named as a party nor does the Order identify with specificity the records that fall within its purview; likewise, the agency has not offered any further explanation or context in which to view the Order, the expansive terms of which (subsection (2) in particular) are unique in our experience with such orders in this forum. Compare 05-ORD-066 (Order expressly bound the public agency and specified the records, providing that "Ramey Estep High School and Ramey Estep, Inc. shall not disclose, in any manner, records or reports to Steven Farmer relative to the education, treatment and placement of [N.F.] at Ramey Estep by the Cabinet for Health and Family Services"). "It is not the duty of the Attorney General, however, to review the actions of the [D]istrict [C]ourt in issuing a protective order" or question the specific terms; rather, the duty of this office is to review the actions of the public agency in order to determine whether it responded to a request made under the Open Records Act in a manner consistent with provisions thereof. OAG 91-121, p. 4.
As noted, in OAG 89-22 and the subsequent line of decisions, the Attorney General concluded that a public agency "which is a party to the litigation in which the protective order was issued" may be found in contempt of court and subject to civil liability if the public agency or the employees thereof release the records to which the protection of the Order extends. Id., p. 2. The referenced line of decisions generally holds that the Open Records Act does not supercede a protective order entered by a court of competent jurisdiction, but presupposes that the public agency is properly before the court as a party to the subject litigation. Although KSP is not a named party in U.S. v. Mal Walton, et al., the broad language of the Order upon which it relied, namely, the clause making it applicable to "any other third party, " compels the same result here assuming that "any and all warrants" associated with Mr. Hutsell are included among the "certain sensitive documents" within the purview of that Order. Accordingly, this office affirms the agency's denial of Mr. Hutsell's request consistent with OAG 89-22 and its progeny. "The entry of a protective order removes a document[s] within its terms from the application of the Act." OAG 92-16, p. 6; see 05-ORD-066, above (holding that public agency was required to adhere to Court Order "in deference to the judicial process" and the records could not be released unless and until the Order was lifted).
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:
Charles Edward Hutsell, # 13378-032Morgain M. Sprague
Footnotes
Footnotes
1 The July 30, 2012, Order that was apparently enclosed with Mr. Hutsell's initial request denied as "moot" his Motion to Show Cause (R. 553) regarding the allegedly deficient response that he received to his request for "certain records." The District Court noted that Mr. Hutsell referenced a June 29, 2012, Protective Order in his Motion, but stated that a "review of the docket sheet reveals that no such Protective Order was filed in this Court on that date." Further, the Court observed that the "proper avenue for Defendant to request records from the Kentucky State Police is a request through the Kentucky Open Records Act, not in his present collateral attack on his federal sentence." This Order, which also specifically noted that KSP "is not a party to this proceeding [ U.S. v. Charles Edward Hutsell , Criminal No. 10-cr-78-KSF-CJS-20, Civil Action No. 12-cv-7202-KSF-CJS]," prompted Mr. Hutsell's August 9 request/follow-up letter to KSP, and is referenced therein.
2 See KRS 61.870(2).