Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Administrative Office of the Courts violated the Open Records Act in the disposition of State Journal staff writer Fred Lucas' December 19, 2001 and January 2, 2002 requests for information and records pertaining to AOC employee Teresa Fallis. For the reasons that follow, and upon the authorities cited, we find that AOC is not bound by the provisions of the Open Records Act and therefore cannot be said to have violated the Act in the disposition of Mr. Lucas' requests.
On December 19, Mr. Lucas requested "a description of [Ms. Fallis'] duties, her job title, her direct supervisor, how long she has worked at AOC, a copy of her resume, job application and reference letters . . ., and correspondence she has made from the office." 1 On January 2, Mr. Lucas submitted a second request to AOC "for copies of electronic mail messages or e-mail messages sent to and from Ms. Fallis' e-mail account at the AOC." (Emphasis in original.)
On January 3, 2002, AOC staff attorney Kevin J. Smalley responded to Mr. Lucas' requests. In narrative responses, Mr. Smalley provided him with Ms. Fallis' dates of employment, job title, and salary, and attached a copy of her job description. He declined to honor the remainder of Mr. Lucas' request, explaining:
[C]ourt records are under the control of the Kentucky Supreme Court and as such are not subject to the Open Records Law. KRS 26A.200; KRS 26A.220; Ex parte Farley, Ky., 570 S.W.2d 617, 624-625 (1980). While AOC does release limited information as a matter of comity when requests are made with reasonable particularity, it does not honor requests for "all documents" or generic requests for the "entire personnel file" of an individual. Therefore, AOC will not provide copies of any electronic mail records or other correspondence that was sent to, or from, Ms. Fallis.
It has been the consistent policy of this office to protect the privacy rights of individuals by not making all personnel information public.
Mr. Smalley indicated that he was providing information and records relating to Ms. Fallis that "touch[] on matters of public concern."
On appeal, Mr. Lucas challenges AOC's position asserting that he is entitled to inspect her e-mail messages because they are transmitted on a publicly financed e-mail account, and her letters of reference because she is an employee of the state whose position is publicly funded. Because Ms. Fallis is an employee of the Court, we do not find these arguments persuasive.
Our decision 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 and KRS 26A.220. KRS 26A.200 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.
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.
Analyzing the relationship between KRS 26A.220 and 26A.200 and the Open Records Act, the Court concluded at page 624 of Ex parte Farley:
Whether [the provisions of the Act] conflict with or are harmonious with KRS 26A.200 - 26A.220 . . . 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.
See also,
York v Commonwealth, Ky. App., 815 S.W.2d 415, 417, 418 (1991) (stating that "the only statute which specifically names courts as public agencies [namely, the Open Records Act] has been held not to apply to court records").
In Ex parte Farley, above, the Supreme Court specifically recognized that the Administrative Office of the Courts is "part and parcel of the judicial department of the state . . . [and] inseparable from the office of the Chief Justice itself." Ex parte Farley at 620. It exists "to serve as the staff for the Chief Justice in executing the policies and programs of the Court of Justice," KRS 27A.050, and to "act as the administrative and fiscal agency of the Court of Justice." SCR 1.050(1). Records generated by and for the Administrative Office of the Court are indisputably records of the Court. Accord, OAG 79-174 and OAG 85-9 (Board of Bar Examiners is not a public agency for open records purposes); OAG 91-45 (Judicial Retirement and Removal Commission, now the Judicial Conduct Commission, is not a public agency for open records purposes); OAG 91-47 and 93-ORD-47 (Kentucky Bar Association is not a public agency for open records purposes). 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, including records of the Administrative Office of the Courts, must be resolved by the Court.
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 proceedings.
Footnotes
Footnotes
1 The quoted text of Mr. Lucas' requests, which include improperly framed requests for information as opposed to properly framed requests for reasonably described public records, is extracted from his letter of appeal. He did not furnish us with copies of his requests as required by KRS 61.880(1). We urge Mr. Lucas to bear in mind, in formulating future open records requests, that public agencies are not obligated to honor requests for information as opposed to records. See 02-ORD-1 and authorities cited therein. In addition, we urge him to review KRS 61.880(1) before initiating future open records appeals.