Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the denial by the Kentucky Parole Board, of Kenneth Sewell's open records requests, submitted on March 19, 1998 and March 23, 1998.
In his March 19, 1998 open records request, addressed to the Chair of the Parole Board, Mr. Sewell requested:
In your answer to Civil Case No. 97-CI-01681, Franklin Circuit Court, (see attachment no. 1), received by myself, Kenneth Sewell, on March 19, 1998, you stated that "upon receipt of the Opinion dated 5 August 1997, that you contacted the Attorney General to explain the reason a response was not given."
I would like to request a copy of that correspondence, in whatever form it was, and the specific person that was contacted in the Attorney General's Office with that correspondence.
In his March 23, 1998 open records request, again addressed to the Chair of the Parole Board, Mr. Sewell requested to inspect:
The statutes, administrative regulations, policies, and guidelines that state:
Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, responding on behalf of the Parole Board, denied Mr. Sewell's requests, stating:
Your referenced request is hereby denied pursuant to KRS 61.878(1) which states: "The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " Department of Corrections v. Courier-Journal, 914 S.W.2d 349 (Ky. Ct. App. 1996) upheld the legislature's intent that a party to a civil action may not circumvent the Rules of Civil Procedure by requesting materials through the Open Records Act.
In his letter of appeal, Mr. Sewell stated it was not his intention to circumvent the Rules of Civil Procedure and that the court had not stayed discovery in his case, as the court had in Department of Corrections v. Courier-Journal .
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Biggs provided this office with a response to the issues raised in the letter of appeal. In her response, Ms. Biggs reiterated that Mr. Sewell, on more than one occasion, had attempted to circumvent the Rule of Civil Procedure in the ongoing litigation. She further argued that unlike the Courier-Journal, in Department of Corrections v. Courier-Journal , Mr. Sewell is a party to the litigation and should not be allowed to circumvent the rules of discovery and its inherent time frames in order to obtain documents quicker through an Open Records Request.
We are asked to decide whether the Parole Board's response was consistent with the Open Records Act. For the reasons which follow, we conclude that the Board improperly relied upon KRS 61.878(1) as a basis for denying Mr. Sewell's open records requests.
KRS 61.878(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.
The Board argues that because the documents in question relate directly to Mr. Sewell's lawsuit, they are exempt from disclosure under KRS 61.878(1). It is the Board's view that Mr. Sewell's attempt to obtain the documents under the Open Records Act is an attempt to do an end-run around discovery provided for under the Rules of Civil Procedure.
This office has acknowledged that the Open Records Act should not be used as a substitute for discovery. 96-ORD-138. We have also recognized that the Act in no way supersedes a protective order, or other court ordered seal of confidentiality, when a public agency is properly before a court as a party to litigation. 94-ORD-19. However, in the instant case, there has been no claim that records pertaining to the litigation have been sealed or placed under a protective order. Thus, the Board's statutory duties under the Open Records Act are not affected by the presence of litigation. A public agency must respond to a request made under the Open Records provisions in accordance with KRS 61.880(1).
In discussing the relationship of the Open Records Act and the presence of litigation, this office, in OAG 89-65, stated:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880. We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
Recognizing that there are limitations inherent in obtaining records through this mechanism, when records are to be used in litigation, we observed in OAG 82-169:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
In the instant case, the Board failed to meet its burden of establishing that the requested records were exempt from inspection because they were beyond the scope of discovery under the civil rules. Accordingly, we conclude that Board improperly cited KRS 61.878(1) as a basis for denying inspection of the requested records.
Moreover, the Board's reliance upon Department of Corrections v. Courier-Journal is misplaced. The court in that case held the Department improperly relied upon KRS 61.878(1) as a basis for denying the Courier-Journal access to the requested documents, as that section applied only to parties to the litigation, and not to a non-party such as the newspaper. It did not go so far, as the Board argues, to hold that a party to a civil action is precluded by the Rules of Civil Procedure from requesting access to public records under the Open Records Act. KRS 61.878(1). In 95-ORD-18, we analyzed KRS 61.878(1) and held that provision:
means that should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to that action , and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
(Emphasis in the original.)
If the Board has records responsive to Mr. Sewell's requests, it must so advise and, unless the records which he requested fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed. If no such records exist, the Board is required to affirmatively so state. OAG 91-101.
Lastly, we note that portions of Mr. Sewell's requests are for information rather than a request for specific records. This office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Our position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given request. OAG 87-84. The Parole Board was not obligated, under the Open Records Act , to provide answers to Mr. Sewell's requests for information.
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.