Request By:
Willie J. Stewart, # 093596
Brandi Duval, Warren Circuit Court Clerk
Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Warren Circuit Court Clerk violated the Open Records Act in failing to issue a timely written response to the open records request of Willie J. Stewart ("Appellant"). In accordance with Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978), KRS 26A.200, and KRS 26A.220, we find that the Warren Circuit Court Clerk cannot be said to have violated the terms and provisions of the Open Records Act, as it is not applicable to the records of the court system.
On September 18, 2018, Appellant submitted a Request to Inspect Public Records form to the Warren Circuit Court Clerk Brandi Duvall. Appellant was seeking records in a criminal court case. Having received no response to his request, Appellant initiated this appeal on October 8, 2018. On October 16, 2018, Ms. Duvall responded to the appeal stating, "[p]ursuant to KRS 26A.200, 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 Supreme Court. Court records are not subject to statutory regulation such as the open Records Act. Ex Parte Farley, 570 S.W.2d 617 (1978)."
Ms. Duvall is correct that court records generated for, or received by, agencies of the Court of Justice are not subject to the provisions of the Open Records Act. As a consequence, the inaction of the Warren Circuit Court Clerk relative to Appellant's request did not violate the Act. In numerous open records decisions, the Attorney General has 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, p. 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); 98-ORD-6 (Lawrence Circuit Court Clerk did not violate Open Records Act in the disposition of request for court records insofar as "records in the hands of the clerk are records of the court")(copy enclosed). Accordingly, the Warren Circuit Court Clerk cannot be said to have violated the terms and provisions of the Open Records Act.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Andy Beshear
Attorney General
J. Marcus Jones
Assistant Attorney General