Opinion
Opinion By: Gregory D. Stumbo, 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 Larry L. Roberts' December 2, 2003 request for "information regarding the construction of facilities utilized as justice centers throughout the Commonwealth for the previous five years." 1 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. Roberts' request, but note that AOC may have "painted with too broad a brush in applying Ex parte Farley, Ky., 570 S.W.2d 617 (1978) . . . to support its position" that records containing the information sought, if such records exist and are within its custody, need not be disclosed. Horn v. Commonwealth of Kentucky, Ky., 916 S.W.2d 173, 175 (1995).
In a response dated December 22, 2003, 2 AOC General Counsel D. Scott Furkin declined to "review records and compile information on [Mr. Roberts' behalf . . . [but] direct[ed] [him] to sources of the information . . . [sought]," including the biennial budget, containing the locations and construction dates of court facilities; records of the fiscal courts of the counties where the projects were undertaken, containing information relating to whether construction managers or general contractors were employed and the construction manager fees negotiated for projects authorized prior to 2000; and www.kycourts.net containing such information as constructionmanager and architect/ engineer fees for projects authorized after 2000. In closing, Mr. Furkin observed:
[P]lease be aware that certain provisions of KRS 61.872 to 61.884 (Kentucky's Open Records Law) have been adjudged inapplicable to the courts. See Ex parte Farley, [citation omitted]. This exemption extends to the AOC as the administrative arm of the state's four-tiered court system.
He nevertheless indicated that "AOC strives to accommodate reasonable requests for information in which there is a legitimate public interest. "
On appeal, Mr. Roberts observed:
On November 18, 2003, a representative of the Administrative Office of the Courts appeared before the Capital Projects and Bond Oversight Committee to request additional funding for the Johnson County Justice Center. Testimony provided by the AOC to the Committee indicated that the primary cause of the significant increased cost of this project was due to an increase in the prevailing wage determination for Johnson County. The AOC representative compared the square foot cost estimate for the Johnson County project to similar justice center projects currently under construction or recently completed.
Mr. Roberts indicated that his efforts to obtain project cost data from AOC, for the purpose of analyzing the prevailing wage impact to the Johnson County Justice Center, had proven unsuccessful notwithstanding the fact that the data "is clearly public information . . . that the AOC discussed in a public forum . . . [and] that was compiled in part for their appearance before the Committee." Because the Kentucky Supreme Court has firmly opined "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, " Farley at 624, we find no error in AOC's disposition of Mr. Roberts' request.
Resolution of this appeal turns on the application of KRS 26A.200, KRS 26A.220, and Ex parte Farley, above, to the requested records. As noted, in Farley the Supreme Court held that records generated by the courts are not subject to statutory regulation, including the statutory scheme codified at KRS 61.870 to 61.884 and commonly referred to as the Open Records Law. At page 625 of that decision, the Court 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 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; 02-ORD-24.
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.
In analyzing these provisions, and their interface with the Open Records Act, the Court opined:
[W]ith respect to records that belong to the courts and are a part of their ongoing work, the only conclusion consistent with the constitutional right of control over their records is that the public policy [relating to public records and access thereto] must be articulated by the courts themselves.
Id. at 625 (emphasis added). See also, York v. Commonwealth, Ky. App., 815 S.W.2d 415, 417, 418 (1991) (holding 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 Courts are indisputably records of the Court. Accord, 02-ORD-24; see also, 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.
Nevertheless, we remind AOC that the Supreme Court has declared that "whatever belongs to the courts belongs to the public," Farley at 625, and, on at least one occasion, questioned whether the Court of Appeals "painted with too broad a brush in applying Ex parte Farley [citation omitted] and Ex parte Auditor of Public Accounts, 3 Ky., 609 S.W.2d 682 (1982) to support its position." Horn at 175. "Those cases," the Supreme Court noted, "involved certain internal procedures of the judicial department which, we agree, are best left within the province of [the judicial] branch of government." 4 Id. In Horn, the Supreme Court reasoned that the Court of Appeals had itself interpreted Auditor:
to stand for "the proposition that the judicial branch of government has the exclusive authority to manage its own affairs . . . in the sense of rule making, appointments of personnel, admissions to the bar, disciplinary actions, and the administration of the Bar Association." [Department for Human Resources v. Paulson, Ky. App., 622 S.W.2d 508, 509 (1982)]. These are examples of the "core" powers . . . [and n]either Auditor nor Farley should be stretched to apply to anything other than "core" powers.
Horn, at 176. Moreover, in Auditor the Court distinguished "funds raised under authority conferred by this court pursuant to its constitutional power to govern admission to the bar and the discipline of its members," Auditor at 687, from appropriated funds, observing:
[T]o the extent that it has appropriated funds from the general revenues of the state to the judicial branch of government the legislative body has a legitimate and necessary right to know how those funds have been spent.
Auditor at 685. Mindful of the limits of our role in resolving this open records dispute, we would suggest that the right to know how appropriated funds are expended extends to members of the public generally. AOC may wish to consider the cited authorities in determining whether disclosure of records containing the information sought, if such records exist and are within its custody, serves "a legitimate public interest, " 5 and the policies of openness evinced by the Open Records Act should here be accepted as a matter of comity.
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.
Larry L. RobertsState DirectorKentucky State Building and Construction Trades Council5247 U.S. 127 N.Frankfort, KY 40601
D. Scott FurkinGeneral CounselAdministrative Office of the Courts100 Millcreek ParkFrankfort, KY 40601-9230
Cicely Jaracz LambertDirectorAdministrative Office of the Courts100 Millcreek ParkFrankfort, KY 40601-9230
Footnotes
Footnotes
1 The requested information was specifically identified as:
1. Location of the facility;
2. Date advertised for bid and construction dates;
3. Construction Manager/ General Contractor;
4. Square footage of the facility;
5. Construction costs;
6. Construction manager fees;
7. Architect/ engineer fees.
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2 Mr. Roberts also objected to the timeliness of AOC's response. However, in Farley above, the Supreme Court expressly rejected, as "inconsistent with the orderly conduct of [its] business . . . the procedure set forth in KRS 61.880 . . . ." Farley at 625. KRS 61.880(1) includes the three business day response requirement.
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3 In Auditor, above, the Supreme Court held that the Auditor of Public Accounts lacked authority to inspect the accounts of the Kentucky Bar Association, which "was an arm of the judiciary and accountable to that department only." Horn at 175.
4 As noted above, in Farley the Court focused on court records that "are a part of [the courts'] ongoing work" and "materials generated by the court incident to its decision making process." Farley, footnote 4.
5 December 22, 2003 letter from D. Scott Furkin, AOC General Counsel, to Mr. Roberts.
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