Request By:
W. David Klingman, Esq.
Suite 100, Morrissey Building
310 West Liberty Street
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
We are treating a recent letter to this Office from Teddy B. Gordon, Esq. as an appeal to the Attorney General pursuant to KRS 61.880 of your denial of his client's request to inspect certain records in your custody. The records in question were described in your letter of April 1, 1985 as contracts, retainer agreements or any other writing regarding the status of Frockt & Klingman and the Louisville Gardens and records of payments from the Louisville Gardens to Frockt & Klingman other than as contained in the regular income and accounting records mentioned previously.
The original written request to inspect records was prepared by George Green, Business Agent, Local 17, Theatrical Stage Employees and was addressed to Al Antee, the General Manager of Louisville Gardens. Apparently we are dealing with a "public agency" as defined in KRS 61.870(1). While nobody has set forth the organizational makeup of the Louisville Gardens Company, nobody has denied that the Open Records Law applies, generally, to the company. The dispute here concerns whether certain particular records of the company may be inspected.
Your letter of April 1, 1985 to George Green advised that while various records would be made available for inspection, those records mentioned in paragraph one of this letter would not be made available for inspection. No reason was set forth in your letter as to why the records in question would not be made available for public inspection.
This Office received a letter dated May 17, 1985 from I. Joel Frockt, a member of your law firm, to which was attached a copy of your letter of April 1, 1985 and Mr. Green's letter of March 26, 1985. Mr. Frocket's letter stated in part that the Louisville Gardens was making available for inspection the records requested with the exception of two items. He said that Louisville Gardens was relying upon KRS 61.878(1)(a), the privacy exception, in support of its decision not to make certain records available. He also cited the attorney-client privilege and said disclosure cannot be compelled through process of Court. Thus, the Louisville Gardens would not make available for inspection the contracts, retainer agreements or any other writing regarding the status of Frockt & Klingman and Louisville Gardens.
Procedurally this matter has been somewhat confusing. Mr. Gordon's letter in part was a response to Mr. Frockt's letter and while he never specifically stated that his letter was an appeal under the Open Records Law, the last paragraph of Mr. Gordon's letter implies that he is seeking relief from this Office. In addition, your letter to Mr. Green failed to state a specific reason to support your decision to deny in part the request to inspect and a copy of your letter was not sent by of your letter was not sent by you to this Office. KRS 61.880(1) and (2). Finally, Mr. Frockt's belated involvement in this matter is not entirely clear.
Opinion of the Attorney General
The basic issues to be resolved are whether the contracts, retainer agreements and other documents pertaining to the public agency and its attorneys are subject to public inspection and whether records of payments from the public agency to its attorneys other than as contained in regular income and accounting records are subject to public inspection.
In OAG 82-169, copy enclosed, we dealt with issues similar to those which you have raised. Defenses such as privacy and the attorney-client privilege were asserted in that situation. At page three of the opinion we said that generally, the contracts, vouchers and other business records of a public agency are open to public inspection under the Kentucky Open Records Law. In that opinion, apparently unlike your present situation, litigation was a factor to be considered and some material was deemed not to be available for public inspection until the litigation was completed.
At page four of OAG 82-189 the following appears which is relevant to the issues involved in this appeal:
"It is our opinion that the contract or contracts between the Board of Education and its attorneys should be made available for public inspection. Although such a contract may not be discoverable under court rules, we believe contracts of public agencies must be openly made and available for inspection by the public. We do not see how knowledge of the terms of such contracts will hinder the agency in the prosecution of its law suits."
See also OAG 81-288, copy enclosed, where we said that a contract between a superintendent and a school district is a public record and should be made available for public inspection.
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the contracts, retainer agreements and other documents pertaining to the employment relationship between the public agency and its attorneys was improper and in violation of the Open Records Act. Furthermore, your denial of the request to inspect records of payments from the public agency to its attorneys other than as contained in regular income and accounting records was also improper and in violation of the Open Records Act.
As required by statute a copy of this opinion is being sent to the requesting party. If you decide not to comply with this opinion you may initiate further proceedings pursuant to KRS 61.880(5).