Request By:
Mr. Dixie R. Satterfield
Bowling Green City Attorney
Satterfield and Kafoglis
Attorneys at Law
313 East Tenth Street
Post Office Box 9970
Bowling Green, Kentucky 42102-4970
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
By letter of December 12, 1990, Mr. Charles Fortney, news director of WBKO-13, Bluegrass Television, Inc., pursuant to KRS 68.880(2), has appealed your denial, on behalf of the City of Bowling Green of his television station's request to examine settlement documents concerning a wrongful death suit brought against the City of Bowling Green and a maker of automobile brakes. The case arose out of an automobile accident involving a Bowling Green Police Officer, in which a woman was killed.
In his letter to you, dated December 5, 1990, Mr. Rick Hightower of the television station had requested, "'all terms' involved in the settlement of the case City of Bowling Green vs. Gary Glass ."
You replied to Mr. Hightower in a letter dated December 6, 1990, and denied the television station's request. You stated, as grounds for denial:
First, this matter has been settled verbally at this time and no written settlement has been prepared. Even when the settlement documents are prepared, I must still deny your request. KRS 61.878(1)(a) states that public records are excluded if they contain information of a personal nature where the public disclosure will constitute a clearly and warranted invasion of personal privacy. This settlement was made with the clear understanding among all the parties that the terms would remain confidential. To breach this trust would work an injustice on the plaintiff.
In addition, KRS 61.878(1)(j) states that public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly are excluded from the open records act. KRS 26A.200 through 26A.220 states that all records made by or generated for or received by any agency of the court of justice are subject to the control of the Supreme Court. This has been interpreted to mean that such court records are not subject to the open records act.
You also disclosed, in the letter that "no city funds are being expended in this case."
OPINION OF THE ATTORNEY GENERAL
Under the Kentucky Open Records Act, a public agency is not required to create a document which does not already exist; such an agency is required to allow inspection of all its records unless the records are exempted by their nature under KRS 61.878. OAG 78-321. Because the written settlement agreement has yet to be prepared, it is the opinion of the Attorney General that no violation of the Kentucky Open Records Act has yet occurred. We disagree, however, with your conclusion that when the settlement documents are prepared, they may be excluded from disclosure on the grounds you have stated.
The Open Records Act is premised on the proposition, stated in the preamble of the Act, that "access to information concerning the conduct of the peoples business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky." This right of access is not absolute. Certain types of requested documents do not fall within the Act and may be excluded by an agency.
Among the categories of public records excluded from the Kentucky Open Records Act set forth in KRS 61.878(1), and subject to inspection only upon order of a court of competent jurisdiction, are:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
. . . .
(j) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly.
You stated that the settlement was made with the clear understanding among all the parties that terms would remain confidential, and therefore that the privacy exemption would apply. We disagree with your conclusion. The Act must be strictly construed in favor of disclosure, and the parties' understanding of confidentiality will not be binding on the courts. See KRS 61.882(4).
We recently had occasion to consider the privacy exemption in OAG 90-142, a copy of which is enclosed. In that opinion, quoting earlier opinions, we said that deciding whether or not the disclosure of public records would constitute a clearly unwarranted invasion of personal privacy requires a balancing of the public's right of access to public records against a person's privacy interests as measured by the standards of a reasonable man. See
Board of Education v. Lexington-Fayette County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981).
Balancing the privacy interests of the parties to the settlement against the public's right of access to a written out-of-court settlement where a public agency is a party to that settlement and measured by the standards of a reasonable man, we are of the opinion that under the facts presented, the public's right of disclosure outweighs the privacy interests which might be identified.
We can identify several parties that might assert a personal privacy interest in the terms of the settlement: the City of Bowling Green; the Administrators of the Estate of Jennie Lee Yoakem; the Administratrix of the Estate of James Earl Young, NAPA Auto Parts, Inc.; New Jersey American Company and the attorneys representing each party. However, the City and companies involved have no personal privacy interests as only people are capable of having personal privacy. The persons killed in the accident have no recognizable privacy interests. Our office has long followed the common law rule that deceased persons have no recognizable privacy interests. See for example, OAG's 81-149 and 82-413. This leaves only the privacy interests of the administrators of the estates and the attorneys to be considered. Ordinarily estate settlements are done in public. Administrators owe a fiduciary duty to the beneficiaries of an estate, and although they might prefer that the terms of the wrongful death settlement remain confidential, we view their personal privacy interests as minimal, at best. Similarly, we fail to see how an attorney can assert his own personal privacy interest in the terms of an out-of-court settlement he negotiates on behalf of a client.
On the other side of the balance, we must weigh the importance of the public's right to know the outcome of a lawsuit involving the City of Bowling Green which arose out of an accident involving a police officer. The policy of the Open Records Act, expressed by our General Assembly, is that "free and open examination of public records is in the public interest and the exceptions provided . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4).
You indicate that no City funds were expended in this case. Certainly if City funds were expended that would weigh heavily toward public disclosure. Previous opinions of this office have found that settlements of a civil suit by a city are subject to full public disclosure. See OAG's 78-35, 88-43 and 90-36, copies of which are enclosed. See also
Courier-Journal v. McDonald, Ky., 524 S.W.2d 633, 635 (1974), in which the Court said:
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 substantial concern, against which little weight can be accorded to any desire of the plaintiff to keep secret the amount of money he received.
However, It does not follow that if no city funds are expended in an out-of-court settlement involving the city, because of the availability of insurance or otherwise, that the public has no legitimate interest in the settlement. City funds were expended in paying the insurance premiums, and the public has a legitimate interest in how a lawsuit involving a public agency is settled, at least insofar as the settlement concerns the public agency. In summary, we are of the opinion that under the facts presented, the public's interest in disclosure outweighs the litigant's privacy interests in the terms of the out-of-court settlement. Therefore, the City of Bowling Green's reliance on KRS 61.878(1)(a) is misplaced.
In addition to the personal privacy exemption, you indicated that the terms of the settlement are exempt from disclosure as court records pursuant to KRS 61.878(1)(j) (which exempts records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly), and KRS 26A.200 through 26A.220 (which makes records made by or generated for or received by any agency of the court of justice subject to the control of the Supreme Court). We are of the opinion that the city's reliance on these statutes is also misplaced.
It is true that court records are outside the scope of the Open Records Act. We reaffirm our previous opinions, to that effect, including OAG's 83-194, 85-9 and 90-4. If the news media desires access to a court file ordered sealed, or settlement documents, not a part of the record but ordered not to be disclosed, as the trial court did in
Courier-Journal v. McDonald, Ky., 524 S.W.2d 633 (1974), the news media's remedy is to file a motion to intervene in the suit, with notice to the litigants, and request a hearing. This gives the trial court an opportunity to determine whether or not the news media's right of access under the First Amendment to the United States Constitution outweighs the litigant's right of privacy. See
Courier-Journal v. Peers, Ky., 747 S.W.2d 125 (1988).
However, we disagree with your assertion that settlement documents, not a part of the court file, and not ordered to remain confidential by the Court, fall within the court records exception. Litigants frequently document in writing the terms of settlements, and they are seldom "generated for" or "received by" the trial court. We are of the opinion that settlement records of this nature are not Court records. As previously indicated, we have previously issued opinions requiring their release.
We are not unaware that the Supreme Court is given exclusive authority to determine which records were "generated, made or received by or for any court," pursuant to KRS 26A.210(2) and KRS 26A.220, but we fail to see how the City can make a good faith argument that records never filed with or considered by a court can be reasonably construed as "court records" as so defined.
It is therefore the opinion of the Attorney General that the City of Bowling Green has up to now acted consistent with the provisions of the Open Records Act, because the records requested have not yet been prepared. However, it is also the opinion of the Attorney General that when settlement records are prepared, they will be subject to public inspection and must be made available to WBKO-13, Blue Grass Television, Inc. who requested them, unless the trial court orders that the parties keep the terms confidential. In such an event, the television station's remedy is to intervene in the suit, and move to reverse that order.
As required by statute, a copy of this opinion is being sent to the appealing party, Mr. Charles Fortney. Either of you may initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.