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 actions of the Office of the Kenton County Sheriff relative to John Ellenbogen's March 25, 1998 open records request to inspect:
all documents, papers, notes, faxes, correspondence, orders, notices, advertisements, etc. and all seized property in the possession and/or custody and/or control of the Kenton County Sheriff or his office, in regard to the matters concerning Circuit Court case No. 96-Cl-02335 and Court of Appeals case No. 97-CA-002786, pursuant to my OPEN RECORD REQUEST under KRS 61. (Emphasis in the original.)
In his letter of appeal, Mr. Ellenbogen stated that he had not received a written response from the Office of the Kenton County Sheriff within the prescribed three day period. However, in his March 25, 1998 open records request, attached to the letter of appeal, Mr. Ellenbogen acknowledged that he had received a "partial response," faxed to him on March 25, 1998, from Sheriff Steenken.
After receipt of the letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to the Kenton County Sheriff's Office and enclosed a copy of Mr. Ellenbogen's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Bill Steenken, Sheriff of Kenton County, provided this office with a response to the issues raised in the appeal. As his response, Sheriff Steenken enclosed a copy of his March 25, 1998 response to Mr. Ellenbogen in which he stated:
When you appealed your case in Circuit Court, the Sheriff sale was dropped immediately. I have no jurisdiction on your merchandise. For you to see said merchandise, contact Judge Steven Jaeger. That merchandise is under his control not mine.
We are asked to determine whether the actions of the Office of the Kenton County Sheriff were consistent with the Open Records Act. For the reasons which follow, we conclude that the response of the agency was in substantial compliance with the Act.
KRS 61.872(4) requires that if a public records request is sent to someone who does not have custody or control of the requested records, the person who receives the request must notify the requester of this fact and provide the requester with the name and location of the official custodian of the public records. In its response the Sheriff's Office notified Mr. Ellenbogen that the merchandise that he requested was under the control the Circuit Court and advised him to contact Judge Steven Jaeger. This portion of the response was consistent with the requirements of KRS 61.872(4).
We do note that the courts are not bound by provisions of the Open Records Act. This is based on KRS 26A.200, KRS 26A.220, and the Kentucky Supreme Court's decision in Ex parte Farley, Ky., 570 S.W.2d 617 (1978). In Farley , the Supreme Court held that records generated by the courts are not subject to statutory regulation. "Records in the hands of the clerk," the court noted, "are the records of the court." Farley at 624. The court thus held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity ? some details of the law ? present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept." Farley at 625. The Attorney General has relied on this language in consistently holding that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court's rules and regulations governing access to its own records, and are accepted as a matter of comity. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173; 97-ORD-138.
This position finds support in KRS 26A.200 which provides that all records which are made by or generated for or received 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. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4.
It is for the court, and not this office, to determine which policies evinced by the Open Records law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. Simply stated, disputes relating to access to court records must be resolved by the court.
Finally, it is unclear from the Sheriff's response whether his office has any other records responsive to Mr. Ellenbogen's request. If records exist which satisfy Mr. Ellenbogen's request, and are not otherwise exempt under an applicable exception set forth in KRS 61.878(1)(a) through (1), they should be released to him immediately. If no such records exist, the Sheriff's Office is obligated to affirmatively so state. OAG 91-101.
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.