Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McCreary County Judge/Executive violated the Open Records Act in the disposition of McCreary County Record News Editor Janie Slaven's request dated October 14, 2014, for "a copy of the settlement agreement which led to the ultimate dismissal prior to trial of Ivey v. McCreary County Fiscal Court, et al. in United States District Couirt (Eastern Dist./Southern Div. 6:12-CV-145-GFVT)." For the reasons that follow, we find that the disposition of Ms. Slaven's request was not in accordance with the Act.
On October 17, 2014, McCreary County Judge/Executive Douglas E. Stephens replied: "We do not have any documents pertaining to the settlement agreement. You will need to contact our Insurance Agent (Kentucky Association of Counties) in Frankfort to obtain any of that documentation." In fact, Ms. Slaven had made an identical request to KACo on October 14. KACo's General Counsel, Timothy A. Sturgill, replied on October 17, 2014: "Based upon the information you provided, the Kentucky Association of Counties has been unable to identify any 'public records' as defined in KRS 61.870(2) that are responsive to your request."
Ms. Slaven states in her appeal letter dated October 22, 2014: "Through phone discussions and email correspondence, Judge Stephens later advised me that only the attorneys involved (plaintiff and defense) had copies of the settlement. They would both have to go before the Magistrate Judge who presided over the case in order to release the documents. I have limited access to the federal case in question via a PACER account and have been unable to locate a document indicating that a federal judge has issued a gag order on this information." We have received no communications in response to this appeal from the McCreary County Judge/Executive, and there is nothing in the record to contradict Ms. Slaven's representations.
KRS 61.870(2) defines "public record" to include all records "which are prepared, owned, used, in the possession of or retained by a public agency. " As the Supreme Court of Kentucky has observed, "[t]here can be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is not a public record. " Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 471 (Ky. 1997).
The County Judge/Executive takes the position that it is not responsible for retrieving a copy of the settlement agreement from its insurer or counsel. In 00-ORD-207 (copy attached) , we stated that "public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)."We ruled in that appeal that a city which was a party to a settlement agreement was required to obtain and produce a copy of that agreement from its insurer, which "holds [the record] at the instance of and as custodian on the city's behalf. "
Likewise, in 04-ORD-123(copy attached) , we rejected a city's argument that it could not produce records because they were in the possession of its attorney. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " Id . (quoting unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). A third party authorized to possess of a city's records "holds [them] at the instance of and as custodian on the city's behalf, and ? the city's position that it has no control over these records is without merit."04-ORD-123; see also 05-ORD-015;06-ORD-223. We hereby adopt 00-ORD-207 and 04-ORD-123 as the basis for our decision that the McCreary County government is responsible for obtaining a copy of the settlement agreement for public inspection from its agents, whether they be insurers, attorneys, or others.
An additional issue is raised as to whether the settlement agreement is protected by any sort of confidentiality that is cognizable under the Open Records Act. The County Judge/Executive has represented to Ms. Slaven that the opposing attorneys "would both have to go before the Magistrate Judge who presided over the case in order to release the documents." The record, however, does not support that representation.
"[A] public agency may not circumvent the statutory requirements [of the Open Records Act] by agreeing to keep the terms of a settlement agreement confidential." Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 472 (Ky. 1997). "[A] confidentiality clause reached by agreement of the parties ? cannot in and of itself create an inherent right to privacy superior and exempt from the statutory mandate for disclosure contained in the Open Records Act. " Central Kentucky News-Journal v. George, 306 S.W.3d 41, 46 (Ky. 2010); see also 12-ORD-201.
"If the settlement agreement is sealed by order of a court, the question of whether the document is subject to public inspection must be raised in the judicial system."OAG 01-6. The burden of proving the existence of such a court order, however, rests upon the public agency. 11-ORD-212. We have consulted the electronic record in the federal civil action at issue and found no indication of an order sealing the terms of the settlement between the parties, or otherwise directing anyone to observe confidentiality. Furthermore, the County Judge/Executive has made no assertion in the record of this proceeding that any such order exists. Therefore, we find that the County Judge/Executive violated the Open Records Act by not providing a copy of the settlement agreement.
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 proceedings.
Distributed to:
Ms. Janie SlavenHon. Douglas E. StephensAustin Price, Esq.