Request By:
Mr. William E. Davis
Administrative Director
Administrative Office of the Courts
403 Wapping Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. Jack E. Farley, Public Advocate of the Commonwealth of Kentucky, has appealed to the Attorney General as provided by KRS 61.880 the denial of your office of access to certain public records in your custody. As directed by said statute we are giving our opinion as to whether the records were properly withheld from public inspection.
We believe that you were within your legal prerogative in denying access to the records in question for the reasons set forth below.
The records requested for inspection by Mr. Farley are generated under KRS 532.075. This statute is a legislative mandate to the Supreme Court to review every case in which the death penalty is imposed for the purpose of insuring that the imposition of the penalty is within constitutional bounds. Under the statute the clerk of the trial court is to send the entire record and transcript to the Supreme Court along with a filled out standard questionnaire supplied by the Supreme Court. The Supreme Court shall review the penalty as well as any errors enumerated by way of appeal, and after so reviewing the Supreme Court shall either affirm the death sentence or set aside the sentence and remand the case for resentencing.
The portion of KRS 532.075 upon which Mr. Farley premises his request for the inspection of records is subsection (6) and (7) which reads as follows:
"(6) The Chief Justice shall assign to an administrative assistant who is an attorney the following duties:
"(a) To accumulate the records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate."
"(b) To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
"(c) To compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
"(7) The administrative office of the courts shall provide such staff, services, and data as are necessary to proper consideration of any matter relating to the imposition of the death penalty in any case."
The records requested are therefore the work product of a staff attorney of the Court and are specifically designed and intended to aid the Court in reviewing death penalty cases as mandated by the statute. Aside from another reason, which we will discuss presently, we believe that the records in question are exempted from the provisions of Kentucky's Open Records Law, KRS 61.870-61.884, because of their nature. The exemption we believe applies is provided in KRS 61.878(1), (g) and (h). We believe that the records are preliminary drafts, notes, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Although the Kentucky Constitution requires that the courts be open, Section 14, and although the Kentucky Open Records Law includes courts within the definition of a public agency, KRS 61.870(1), we believe that any papers produced by judges or staff attorneys during the internal deliberative process of the appellate courts are of such a preliminary nature that they come within the exception cited above.
In your answer to Mr. Farley refusing his request to inspection of the records, you stated that you were basing your denial upon KRS 26A.200 and 26A.220 which read as follows:
"(1) All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court.
"(2) The Supreme Court shall determine which records were generated, made, or received by or for any court.
* * *
"All public officers, public agencies, or other persons having custody, control, or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee."
We think that your position is well taken. One of the exceptions to the Open Records Law is KRS 61.878(1)(j) pertaining to public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment by the General Assembly. The Legislature has clearly placed in the hands of the Chief Justice the handling and regulation of the records of the courts.
KRS 26A.220 is dispositive of the issues raised by Mr. Farley in regard to the exchange of public records between public agencies, KRS 61.878(4). Although public records may be exchanged or made accessible from one public agency to another, even though the records are exempt from inspection by the public, the Chief Justice clearly has the power to enact regulations which preclude the inspection of the court records by a public agency as well as by the public generally.
As directed by statute, we are sending a copy of this opinion to the requester who has the right to challenge it in court, KRS 61.882.