Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General violated the Open Records Act in the disposition of Russell Carollo's January 20, 2016, request for records relating to Purdue Pharma, L.P. For the reasons that follow, we find no violation of the Act.
Mr. Carollo's January 20 request was for "access to and copies of all records related in any way to Purdue Pharma L.P., including, but not limited to, all records obtained through discovery [and] all records related in any way to the authorization for destruction of any documents falling under the scope of this request." He advised: "If there are costs involved, please provide a detailed estimate and notify me if the costs exceed $ 100." On January 21, 2016, Mr. Carollo supplemented his request to include "all materials responsive to subpoenas and all discovery materials received from defendants in Pike Circuit Court Division II Case No. 07-CI-01303, known as the Purdue Pharma OxyContin case, which was recently settled." Mr. Carollo's request was received on January 25, 2016, and the addendum on January 27, 2016.
On January 28, 2016, Assistant Attorney General S. Travis Mayo issued a response stating in part as follows:
On December 22, 2015, the Pike County Circuit Court entered a Judgment that dismissed the action with prejudice as against all of the defendants as set forth in a Settlement Agreement and General Release. Under the terms of the Court's Judgment and the Settlement Agreement that it incorporates by reference, the Commonwealth is prohibited from disclosing or producing documents or information produced in discovery in the litigation. As a result of the entry of the Judgment by the Pike County Circuit Court, a court of competent jurisdiction, the documents you request are exempt from disclosure. [Citations omitted.]
Furthermore, the Settlement Agreement provides that the Agreed Qualified Protective Order that the Pike Circuit Court entered on December 4, 2013, shall continue and remain in full force and effect. The Agreed Qualified Protective Order, prohibits the disclosure of documents designated as "Confidential, " "Highly Confidential, " or which contain "Confidential Health Information." Consequently, by maintaining the full force and effect of the Agreed Qualified Protective Order, the Judgment of the Pike county Circuit Court prohibits the disclosure of documents that contain information that is confidential, highly confidential, or contain confidential health information. If the Commonwealth were to release any of these documents, it would violate these Court Orders and subject itself to potential sanctions by the Court.
Mr. Mayo further responded that Mr. Carollo's request and addendum seeking "copies of all records related in any way to Purdue Pharma L.P." did not describe the records with sufficient specificity under KRS 61.872(3)(b) to provide copies by mail:
[I]t is a blanket, open-ended request for records on a particular subject -- a defendant in litigation the Commonwealth of Kentucky filed in 2007, and in which this office represented the Commonwealth. The litigation spanned more than eight years and traversed eight (8) courts. The litigation involved multiple Cabinets, agencies, divisions, offices, and other governmental and quasi-governmental entities. The parties to the litigation produced millions of pages of documents in discovery, with the Commonwealth, alone, producing nearly 22,000 documents numbering in the hundreds of thousands of pages. Your non-specific request would place an unreasonable burden on this office to locate, copy and produce incalculable numbers of ill-defined records.
Additionally, Mr. Mayo invoked KRS 61.878(1)(a) and (1)(k) and 45 CFR Part 164 as to "protected health information of private individuals"; KRS 61.878(1)(l) and KRS 194A.060 as to "records and reports of the Cabinet for Health and Family Services that directly or indirectly identify a client or a patient, or a former client or patient, of the Cabinet"; KRS 61.878(1)(i)-(j) as to "preliminary drafts, notes and memoranda"; and KRS 61.878(1)(l) as to "documents protected by the attorney-client privilege and work-product doctrine. " Finally, he cited KRS 61.872(6), arguing that the request would pose an unreasonable burden:
Locating and copying these voluminous records would entail the work of numerous attorneys of the Office of the Attorney General, its outside counsel, and attorneys of the multiple Cabinets, agencies and other governmental and quasi-governmental entities. Once these voluminous records were located, these attorneys and employees would have to separate any confidential material from non-confidential material.
Mr. Carollo initiated an appeal of this disposition on February 5, 2016, arguing that the public interest in disclosure of information about litigation "pursued at the expense of taxpayers" outweighed all the reasons for the denial. He further argued that "[t]he response did not specifically identify withheld materials, and in addition, no segregable portions were produced."
On February 18, 2016, Mr. Mayo responded to the appeal on behalf of the Office of the Attorney General. In addition to reiterating the arguments already made, he stated the following:
In paragraph number 3 of the Judgment, the Court specifically incorporates the Settlement Agreement by reference in the Judgment as if fully set forth in that Judgment. Thus, the Judgment includes all of the terms of the Settlement Agreement. Under paragraph number 4 of the Judgment, the Commonwealth of Kentucky, which the Office of the Attorney General represented in the litigation, and the Purdue Pharma defendants must comply with all obligations in the Settlement Agreement. As paragraph number 4 also mandates, the Pike County Circuit Court retains jurisdiction of the Judgment and the parties to the action for the purpose of enforcing the Judgment, and the laws of Kentucky govern the terms of the Judgment.
Pursuant to paragraph number 22 of the Settlement Agreement, the Court orders that "The parties and their lawyers agree that within 60 days of the date of this Agreement they will either return to the producing party or will completely destroy any and all paper and/or electronic documents received from the producing party, or received by virtue of any subpoena, and any copies made of same." The Office of the Attorney General has complied with this provision. Thus, the office is no longer in the possession of these documents and cannot produce them. Under paragraph, number 23, the Court orders:
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With the exception of any pleadings or other documents filed under seal, any pleadings filed in the litigation are publicly-available at the Pike County Circuit Court, which maintains the Court record in the litigation. Access to any pleading filed under seal, and the documents referenced by pleadings filed under seal, may only be gained through an order of the Pike County Circuit Court. ? Just as it abides by the current orders of the Pike County Circuit Court, the Office of the Attorney General would follow any order of the Court requiring the disclosure of a specific document that would not violate the Judgment and the Settlement Agreement it incorporates.
The request at issue in this appeal contains vague terms along with some specific ones. As Mr. Carollo resides in Colorado, and requested an estimated total cost prior to the fulfillment of the request, we interpret his request and addendum as a request for copies. With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection? . If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted). Accordingly, we have often held that "blanket requests for information on a particular subject need not be honored. " OAG 90-83; see also 95-ORD-108 and opinions cited therein.
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
In 00-ORD-79, we found that a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ? from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description:
Mr. Mabry provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
Here, the initial term of the request was "all records related in any way to Purdue Pharma L.P.," which is a far less precise description than that given in 00-ORD-79. Therefore, the records properly at issue are the ones specifically described; i.e., "all records obtained through discovery [and] all records related in any way to the authorization for destruction of any documents falling under the scope of this request," and "all materials responsive to subpoenas and all discovery materials received from defendants in Pike Circuit Court Division II Case No. 07-CI-01303."
We find the judgment of the Pike Circuit Court to be dispositive in this matter. "[A] public agency bound by a court order restricting release of records might be found in contempt of court and subject to civil liability if the agency or its employees released records within the purview of that order." 05-ORD-066. "[T]he Open Records Act does not supersede an order of confidentiality entered by a court of competent jurisdiction. " Id. The "entry of an order by a court of competent jurisdiction prohibiting disclosure of public records ? removes all records within the purview of that order, and parties bound by the order, from application of the Open Records Act. " 12-ORD-219. When a court orders adherence to the confidentiality provisions of a settlement agreement, "the issue of public access to the [affected records] must be resolved by the court regardless of where the record currently resides. " 07-ORD-110.
The court orders and settlement agreement provided and cited by Mr. Mayo make clear that any of the specific records sought by Mr. Carollo are within the category of those materials not permitted to be disclosed by the parties. As such, they are outside the application of the Open Records Act until their disclosure is permitted by the court having jurisdiction over the matter. The Office of the Attorney General has indicated its willingness to abide by any subsequent order of the Pike Circuit Court that permits inspection of any such records.
Most recently, on April 15, 2016, Mr. Mayo has advised that a Motion to Intervene and to Unseal Court Records has been filed in the Pike Circuit Court by Boston Globe Life Sciences Media, LLC, in the same case involved in this appeal. Only the court's disposition of that motion, or a similar one, will affect the confidentiality of the records at issue.
Accordingly, we find it unnecessary to address the other arguments made by the Office of the Attorney General in support of its denial of Mr. Carollo's request. Since the orders of the Pike Circuit Court are controlling, we find no violation of the Open Records Act.
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.