Opinion
Opinion By: TAndy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Mercer County Joint Planning & Zoning Commission violated the Open Records Act in its disposition of attorney Jeffrey L. Schumacher's June 8, 2016, request for "[a] copy of any and all applications filed in the last five years seeking a building permit or variance" (excepting any records already produced in response to a prior request). For the reasons that follow, we find that the Commission violated the Act.
On June 9, 2016, Shawn Moore, Executive Director of the Commission, requested a period of three weeks to provide the records in view of the fact that approximately 10,140 copies would be required. On July 11, 2016, having still not received the records, Mr. Schumacher made an inquiry to Mr. Moore, who replied on July 12: "On advice of our legal counsel as a result of the pending appeal [by Mr. Schumacher's client against the Mercer County Board of Adjustments and Appeals in circuit court], all correspondence and inquiries are to be directed to our Planning Commission attorney, Mr. David Patrick." Mr. Schumacher then appealed to this office.
On July 19, 2016, David Patrick responded to the appeal on behalf of the Commission. Mr. Patrick takes the position that Mr. Schumacher's entire request "is exempt from Open Records requests" under KRS 61.878(1), because Mr. Schumacher currently represents a client in a circuit court appeal against the Mercer County Board of Adjustments and Appeals and his request is related to that pending action.
The language on which the Commission relies is the following from KRS 61.878(1), relating to public records which are exempt from disclosure:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
(Emphasis added.) The Commission interprets this language as foreclosing a litigant from using the open records procedure to obtain any relevant materials outside the civil discovery process. That is an incorrect reading of the statute.
The presence of litigation, and the availability of records through discovery, does not relieve a public agency of its open records duties. A litigant, or an attorney representing a litigant, "stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of litigation provides no reason to grant or deny his request to inspect public records. " OAG 82-169.
KRS 61.878(1) creates no free-standing exemption from open records based on the presence of litigation. Rather, the language invoked by the Commission applies only to records which fall under one of the exemptions listed in subsections (1)(a) through (1)(n) and which are additionally in some manner privileged or protected from civil discovery:
This means that should an agency deny [an open records] request, submitted by a party to a civil action, for properly excludable public records which are related to that action, and which are also protected from pretrial discovery by the Rules of Civil Procedure , and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion.
95-ORD-18 (emphasis added).
The Supreme Court of Kentucky has interpreted KRS 61.878(1) in the same manner:
In evaluating an open records request, the test is as follows. If the requested materials are not specifically excluded from disclosure (under KRS 61.878(1)(a)-(n), or other applicable statutes), then the public agency must provide the materials. If one of the fourteen exemptions applies, then the public agency should deny the request. However, a court of competent jurisdiction, upon request, can nevertheless grant disclosure of any document the agency refused to produce, with one qualification: if the document "pertain[s] to civil litigation" the court cannot order disclosure "beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " Even though the proceeding in the case before us is in the nature of an administrative action rather than a civil action, the agency would apply the same test and any agency denial would have to be based on a statutory or other legal exclusion.
Dept. of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010). The Court thus reaffirmed an earlier opinion determining that "the gist of [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records , to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pre-trial discovery. " Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 863 (Ky. App. 2001) (emphasis in original). Accordingly, we find no merit in the Commission's argument that it may withhold the requested records merely because they might also be obtained through civil discovery.
Given the lack of a substantive basis for denial of the records, we turn to the procedural basis upon which this appeal was brought. KRS 61.880(1) requires disposition of an open records request within three days, excluding weekends and legal holidays, unless a sufficient basis for further delay is articulated pursuant to KRS 61.872(5), along with the "earliest date on which the public record will be available for inspection. " The Commission having failed to produce the records within the three-week time frame represented to Mr. Schumacher, we find that a violation of the Open Records Act occurred.
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.