Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Administrative Office of the Courts' denial of John S. Johnson's February 28, 1996, request for a copy of the Kentucky Circuit Court Clerk's Manual. On March 1, 1996, AOC responded to Mr. Johnson's request, advising him that it is not subject to the Kentucky Open Records Act under the rule announced in Ex parte Farley, Ky., 570 S.W.2d 617 (1978), and KRS 26A.200 and 26A.220. Mr. Johnson challenges AOC's position, arguing that "it is unreasonable to construe the published material requested here into a category with the material requested in Ex parte Farley or to rule it exempt under the purview of KRS 26A.200-220." We do not agree.
This office and the courts have long recognized that records of the courts and judicial agencies enjoy a special status, and are placed under the exclusive jurisdiction of the Court. See, e.g., OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4; 94-ORD-61. This position is predicated on Chapter 26A of the Kentucky Revised Statutes and the holding in Farley, supra. KRS 26A.200 provides, in part, that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other Court, agency, or officer responsible to the Court, are the property of the Court, and are subject to the control of the Supreme Court.
Moreover, KRS 26A.220 provides:
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.
In Farley, at 624, the Kentucky Supreme Court observed:
On its face, the Open Records Law, KRS 61.870 - 61.884, incl. (Ch. 273, Acts, of 1976), appears to apply. Whether its provisions conflict with or are harmonious with KRS 26A.200 - 26A.220, incl. (Ch. 22, Acts of 1976 Ex. Sess.), we need not decide, because we are firmly of the opinion that the custody and control of the 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.
This opinion establishes beyond any doubt that the General Assembly has placed in the hands of the Chief Justice the handling and regulation of the records of the Court. In
York v. Commonwealth, Ky. App., 815 S.W.2d 415 (1991), the Court of Appeals echoed this view, noting that KRS 61.870, "the only statute which specifically names courts as public agencies [,] has been held not to apply to court records." York at 417, 418, citing Farley, supra.
The record requested by Mr. Johnson is clearly a record made by or generated for an agency of the Court of Justice, and its distribution is controlled by the Court. Although the Court itself has recognized that "there is little in the policies evinced by the Open Records Law that we would not accept as a matter of comity," Farley at 625, we believe that Chapter 26A, enacted after the Open Records Law, firmly establishes the right of the Court to regulate its own records and records made by or generated for its agencies. This includes the Circuit Court Clerk's Manual.
A party aggrieved by this decision may 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.