Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Barbara Bryant initiated this appeal on July 21, 2014, challenging the failure of Chief Judge Robert Miller, Grayson Circuit Court, to issue a timely written response upon receipt of her July 7, 2014, request for "an opportunity to obtain or inspect copies of" seven categories of records pertaining to Civil Action No. 13-CI-00326, in addition to a copy of the "set fee schedule" of master commissioners in Grayson County. 1 Ms. Bryant acknowledged that "the initial information was not subject to an open records request," but asserted that responsive documents are now subject to disclosure under KRS 61.878(1)(f).
Upon receiving notification of Ms. Bryan's appeal from this office, Legal Counsel Justin Capps, Administrative Office of the Courts ("AOC"), responded on behalf of Judge Miller. Citing KRS 26A.200 and Ex Parte Farley 570 S.W.2d 617 (Ky. 1978), AOC correctly observed that "all records which are made by, 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 Kentucky Supreme Court and are not subject to statutory regulation, including the Kentucky Open Records Act. " Nevertheless, Mr. Capps continued, "AOC attempts to comply with open records requests in an effort to further the spirit and intent of the statute, unless to do so would compromise the business of the judicial system." By letter dated July 23, 2014, AOC advised Ms. Bryant that provisions of the Act do not apply to Judge Miller/AOC, Judge Miller is not the official custodian of any such records, and the file pertaining to Case No. 13-CI-326 is open for public inspection and copying at the Grayson Circuit Court Clerk's Office. AOC provided Ms. Bryant with a hard copy of the Administrative Procedures of the Court of Justice, AP Part IV, Section 6, regarding the compensation of master commissioners, at no charge. 2 Existing legal authorities validate the position of AOC.
This office has consistently recognized, in accordance with KRS 26A.200 and 26A.220, as well as Ex Parte Farley , above, that court records are not subject to provisions of the Open Records Act, nor are judicial agencies, including AOC, district and circuit court clerks, master commissioners, etc. On many occasions, the Attorney General has therefore observed:
The Open Records Act governs access to "public records, " meaning "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Although this is an all-encompassing definition, the Kentucky Supreme Court has declared that records generated by the courts and judicial agencies are not subject to the Open Records Act. In Ex parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Court stated that "the custody and control of 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. " "Records in the hands of the clerk, " the Court noted, "are the records of the court." Farley at 624. This position finds support in KRS 26A.200 and KRS 26A.220. These statutes provide that records which are made by or generated for or received by the courts are the property of the court and are subject to the control of the Supreme Court. Thus, in York v. Commonwealth, Ky. App., 815 S.W.2d 415, 418 (1991), the Court of Appeals recognized that the Open Records Act "has been held not to apply to court records."
02-ORD-235, pp. 1-2 (Master Commissioner of McCreary County is not bound by the provisions of the Open Records Act) ; 02-ORD-24 (Administrative Office of the Courts is not a public agency for purposes of the Open Records Act) ; 04-ORD-051 (Pike Circuit Court Clerk is not bound by the provisions of the Open Records Act) . See also 04-ORD-219; 09-ORD-118; 11-ORD-087; 13-ORD-020.
This line of authority is controlling on the facts presented. Because records in the custody or possession of Judge Miller are court records to which the provisions of the Open Records Act do not apply, rather than public records within the meaning of KRS 61.870(2), Judge Miller did not violate the Act in failing to issue a timely written response to Ms. Bryant's request. The analysis contained in 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2. Either party may appeal this decision by initiating action in the appropriate circuit court under 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:
Barbara BryantHonorable Robert MillerMark Theriault
Footnotes
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