Request By:
Tommy Southard, # 159170
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Ralph Baskett
Hardin Circuit Court Clerk
Hardin County Justice Center
120 East Dixie Avenue
Elizabethtown, KY 42701-1975
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Hardin Circuit Court Clerk violated the Kentucky Open Records Act in denying the request of Tommy Southard for a copy "of the bond of the County Clerk [] and a copy of the agreement, contract, etc. of the Clerk's surety that is required [of] the Clerk pursuant to KRS 62.055." 1 Because the Clerk is not bound by the provisions of the Open Records Act insofar as "records in the hands of the clerk are records of the court," it is the decision of this office that the Clerk did not violate the Act in his disposition of Mr. Southard's request for the specified records. To the contrary, the Clerk complied with KRS 61.872(4) in providing Mr. Southard with the name and address of the custodial agency.
On a standardized form dated September 28, 2004, Mr. Southard directed his request to the "Hardin County Circuit and District Court Clerk's Office." On September 30, 2004, Ralph Baskett, Clerk, made the following disposition of Mr. Southard's request:
In accordance with the KRS you supplied[,] to my knowledge this is filed with the Revenue Cabinet. You may try contacting them at 200 Fair Oaks Lane, Frankfort, Ky. 40601[.]
Dissatisfied with this response, Mr. Southard resubmitted his request by letter dated October 5, 2004, citing KRS 62.055(3) as authority for his position. 2 In Mr. Southard's view, this provision requires the Clerk to maintain the original, and he is requesting a copy "from the one in [the Clerk's] records not from the Revenue Cabinet." Relying upon Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), and a string of decisions from this office which are inapposite here, Mr. Southard argued that the Open Records Act "does not authorize a public agency to refuse inspection of documents that are within its custody or control" merely because the records "may be obtained more easily or more appropriately from another agency." 3 On the attached copy of Mr. Southard's original request, the Mr. Baskett responded as follows: "Re: KRS 62.055 this is our response to this KRS[.]"
By letter dated October 22, 2004, Mr. Southard initiated this appeal from the Clerk's disposition of his request, echoing his earlier arguments. According to Mr. Southard, "the Clerk's office is in violation of the Open Records Act, and the documents requested were in no way related to any Court Case or Judge, so that cannot be used as an excuse." In our view, 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling regardless of whether the requested records directly relate to a specific court action although that is normally the context in which this issue arises. 4 On numerous occasions, the Attorney General has observed:
The Open Records Act governs access to "public records, " meaning "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Although this is an all-encompassing definition, the Kentucky Supreme Court has declared that records generated by the courts and judicial agencies are not subject to the Open Records Act. In Ex parte Farley, Ky., 570 S.W.2d 617, 624 (1978), the Court stated that "the custody and control of 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." "Records in the hands of the clerk, " the Court noted, "are the records of the court." Farley at 624. This position finds support in KRS 26A.200 and KRS 26A.220. These statutes provide that records which are made by or generated for or received by the courts are the property of the court and are subject to the control of the Supreme Court. Thus, in York v. Commonwealth, Ky. App., 815 S.W.2d 415, 418 (1991), the Court of Appeals recognized that the Open Records Act "has been held not to apply to court records."
02-ORD-235, pp. 1-2 (Master Commissioner of McCreary County is not bound by the provisions of the Open Records Act) ; 02-ORD-24 (Administrative Office of the Courts is not a public agency for purposes of the Open Records Act) ; 04-ORD-051 (Pike Circuit Court Clerk is not bound by the provisions of the Open Records Act) .
As evidenced by the foregoing, the courts have conclusively resolved the sole issue presented by this appeal. Because this office is without authority to deviate from this governing precedent, the same result necessarily follows. Despite having no statutory obligation to respond, the Hardin Circuit Court Clerk provided Mr. Southard with the name and address of the custodial agency in compliance with KRS 61.872(4), thereby exhibiting a spirit of cooperation in keeping with the underlying policy of the Open Records Act. 5 No further action is required.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 KRS 62.055(1) provides:
Every county clerk, before entering on the duties of his office, shall execute bond to the Commonwealth, with corporate surety authorized and qualified to become surety on bonds in this state. Any county clerk holding office as of January 1, 1978, who has not executed bond as provided herein shall do so within thirty (30) days from February 9, 1978.
2 Pursuant toKRS 62.055(3):
The bond of the county clerk shall be examined and approved by the fiscal court, which shall record the approval in its minutes. The fiscal court shall record the bond in the county clerk's records and a copy of the bond shall be transmitted within one (1) month to the Revenue Cabinet, where it shall be recorded and preserved. Except in those counties where the fees of the county clerk are paid into the State Treasury, the premium on the county clerk's bond shall be paid by the county.
3 Although Mr. Southard is correct in this assertion, the fact remains that the Clerk is not subject to the provisions of the Open Records Act.
4 As recently as October 19, 2004, this office affirmed the validity of 98-ORD-6 in a decision involving Mr. Southard and the Hardin District Court Clerk. 04-ORD-190.
5 Pursuant toKRS 61.872(4):
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Although Mr. Southard cites KRS 61.872(4) on appeal, this provision offers no support for his position.