Request By:
Ms. J. Faye Keeling
Executive Director
Housing Authority of Bardstown
513 West Broadway
Bardstown, Kentucky 40004
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Tim Ballard has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain documents in your custody or in the custody of some city agency or its agent or representative.
In his letter to you, delivered June 1, 1988, Mr. Ballard requested that he be permitted to inspect the agreement entered into by the Bardstown Housing Authority and two of its former employees relative to a settlement of the complaint filed by the former employees against the Housing Authority. He was particularly interested in the sums of money paid by the public agency to the former employees.
You replied to Mr. Ballard in a letter dated June 6, 1988, and denied his request. In support of your decision you cited KRS 61.810(3) and (6) of the Open Meetings Act as well as KRS 61.878(1)(a), the exception to public inspection of documents dealing with the protection of a person's privacy. You further said that your agency does not have a copy of the settlement agreement. The agency's legal counsel has a copy of the document but you maintain that the attorney-client relationship precludes inspection of it by anyone.
In his letter of appeal to this office as well as in an earlier letter to this office which was not treated as a formal appeal, Mr. Ballard maintains that the terms of the settlement are matters of public record. Since public funds were expended to achieve an out of court settlement, the public is entitled to know how much of its money was spent. The settlement has concluded this particular matter and there is no longer any pending litigation.
OPINION OF THE ATTORNEY GENERAL
This office, in OAG 78-35, copy enclosed, dealt with a situation very similar to that which is involved here. The issue there was the availability of documents pertaining to the settlement of a lawsuit between a particular person and the city of Louisville. At page two of that opinion we said in part as follows:
"As to whether inspection of the settlement record was properly denied, we know of no provision in the statute which exempts such records from public inspection. We, therefore, cannot agree with your statement that the records are not covered by the Open Records Statute. The case of Courier Journal v. McDonald, Ky., 524 S.W.2d 633, indicates that settlements of civil suits by a city were subject to full public disclosure even before the enactment of the Open Records Statute in 1976. The purpose of the Open Records Statute was to make records more available to the public than they were heretofore. It therefore appears that under common law and statutory provisions the public has the right to all the information regarding the settlement of a civil suit by the city."
In the McDonald case, supra, at page 635 of its opinion, the Court said in part as follows:
". . . The theory that the order was authorized by way of protection of the litigants' right of privacy, which is the only theory offered in support of the order, is not well-grounded. The very authorities relied upon by the respondent recognize that the right of privacy does not extend to affairs with which the public has a legitimate concern. See 62 Am.Jur., 2nd, Privacy, sec. 1, p. 683. Certainly the payment of city funds in settlement of a suit against the city and some of its officers, based on negligence or misconduct in the performance of duty, is a matter with which the public has a substantial concern, against which little weight can be accorded to any desire of the plaintiff in that suit to keep secret the amount of money he received."
While the court in the recent case of Courier-Journal v. Peers, Ky., 747 S.W.2d 125 (1988), concluded in part that it was overruling Courier-Journal v. McDonald, Ky., 524 S.W.2d 633 (1974), to the extent that it conflicts with the opinion in Peers, there is no conflict between the two opinions relative to the issue of the accessibility of settlement records. The conflict involved a procedural matter pertaining to the newspaper's course of action and the proper method to follow to obtain public records.
The public agency's reliance upon sections of the Open Meetings Act is misplaced as this is a request to inspect documents under the Open Records Act (KRS 61.870 to KRS 61.884). Furthermore, since a settlement has been reached there is no pending litigation which would justify the nondisclosure of material during the course of the litigation. The privacy exception to public inspection is not applicable where the expenditure of public funds to settle a complaint or lawsuit brought against a public agency is involved. The settlement document itself is not within the attorney-client privilege. Someone within the city government authorized and approved the settlement and the city or an official of the Housing Authority must have retained or at least has access to a copy of the settlement document to which the public agency is a party.
It is, therefore, the opinion of the Attorney General that the public agency violated the terms and provisions of the Open Records Act when it refused to make available for public inspection the settlement agreement entered into by the public agency and two of its former employees relative to a complaint filed against the public agency by those former employees.
As required by statute a copy of this opinion is being sent to the appealing party, Mr. Tim Ballard. If you and the public agency disagree with this opinion or decide not to comply with the findings and conclusions expressed herein, you may initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.