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 Louisville and Jefferson County Metropolitan Sewer District violated the Kentucky Open Records Act in denying the request submitted by Christopher H. Morris on behalf of his client for "any and all documents, photographs, investigation notes, etc." regarding the District's "maintenance, management, construction, reparation, and inspection" of the area "located at or near the bridge on the east side of U.S. Highway 150 (Bardstown Road) which crosses the south fork of Beargrass Creek" in accordance with specified agreements and ordinances. On June 27, 2006, Kenneth J. Henry reminded Mr. Morris that "MSD is represented by [his firm-Pedley Zielke Gordinier & Pence, PLLC] in a lawsuit in which [Mr. Morris] represent[s] the plaintiff, Ricky Edwards." Accordingly, Mr. Henry felt it was "highly inappropriate" for Mr. Morris "to attempt to bypass proper methods of discovery with this Open Records request"; Mr. Henry also suggested that Mr. Morris should request the records "via a proper discovery request" if he wished to obtain "certain documents pertaining to the civil suit in which MSD has been named as a defendant." On July 5, 2006, Mr. Henry responded to Mr. Morris' letter of June 30, 2006 (a copy of which is absent from the record), clarifying that his reason for denying the request "was not an exception contained within the Open Records Act, but rather, the fact that [Mr. Morris]" is opposing counsel in the underlying civil action. In his view, the Open Records Act "does not allow for attorneys who represent parties adverse to governmental agencies in litigation to short-circuit the discovery process via Open Records requests." Therefore, Mr. Henry's position "is and shall remain" that Mr. Morris' direct contact with his client "under the auspices of an Open Records Request violates SCR 3.130(4.2), and therefore, was an improper attempt to short-circuit the discovery process" governed by the Kentucky Rules of Civil Procedure. Because the District's characterization of Mr. Morris' request is not supported by governing precedent, this office respectfully disagrees.
In addition, Mr. Henry reiterated that Mr. Morris could submit a Request for Production of Documents if he still wished to request certain records from the District to which Mr. Henry would respond within thirty (30) days. By letter dated July 26, 2006, Mr. Morris replied that OAG 89-53 and OAG 90-110 "clearly establish that [his] course of conduct is appropriate." According to Mr. Morris, he "solely requested records which every citizen of the Commonwealth may request." For the sake of "appeasing" Mr. Henry, he enclosed a "Set of Requests for Production of Documents" requesting the same information, but advised Mr. Henry that he still intended to "proceed in obtaining the information through the open records avenue." Noting that Mr. Henry denied his request "on the sole basis that this is a matter in litigation," Mr. Morris initiated this appeal by letter dated September 20, 2006.
Upon receiving notification of Mr. Morris' appeal from this office, Mr. Henry supplemented his response on behalf of the District. To begin, Mr. Henry notes that Mr. Morris propounded Requests for Production of Documents upon him "in the matter of [Ricky] C. Edwards, et ux. vs. Metropolitan [Sewer] District, et al., Jefferson Circuit Court (Division 11), Case No. 04-CI-08560" to which Mr. Henry responded on August 21, 2006; a copy of the Requests is attached to his letter along with a copy of his response. Having objected to each of the four requests as being "overbroad, vague, and unduly burdensome," the District, through Mr. Henry, indicated there "are no documents within its records responsive" to any of the requests. Relying upon this response, Mr. Henry was of the opinion that Mr. Morris' Open Records request was moot since the District "had no records responsive to Mr. Morris' requests." Although Mr. Henry "had no intention of bypassing or otherwise failing to adhere to the requirements of" the Act, he "believed then, and continues to believe" that his response to Mr. Morris' Requests for Production of Documents "also pertained" to Mr. Morris' Open Records request. In the event his opinion is incorrect, Mr. Henry asks that his supplemental response "serve as notice to Mr. Morris pertaining to his Open Records Request that [the District] has no documents in its possession responsive to Mr. Morris' Open Records Request." Because the District cannot produce for inspection or copying records which do not exist, the District cannot be said to have violated the Open Records Act in this regard.
Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the analysis does not end there. Contrary to Mr. Henry's assertion, this office has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, the Attorney General observed:
Although there is litigation in the background of an 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.
OAG 82-169, p. 2. Elaborating upon this view, the Attorney General subsequently observed:
The presence of litigation among the parties should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position as follows:
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 [is] 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.
OAG 89-65, p. 3; See also 97-ORD-98; 95-ORD-27.
In OAG 89-65, the Attorney General qualified his decision with this cautionary language:
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.
Id., p. 3. To summarize, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, this office has not recognized the right of a public agency to deny access to public records on this basis.
In
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. As observed by the Court:
[KRS 61.878(1)] does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery.
(Original emphasis). Citing
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart, supra, at 863. Thus, Mr. Morris "stands in relationship to" the District under the Open Records Act as any other person. Likewise, this office has concluded that Supreme Court Rule 3.130(4.2), upon which Mr. Henry relies in support of his position, does not prohibit direct communication between the employees of an agency, the attorney for the agency, and a litigant, relative to his/her Open Records request. In our view, 05-ORD-166, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented.
Unless the requested records fall within one or more of the exceptions codified at KRS 61.878(1)(a) through (n), the District would be required to disclose those records to Mr. Morris in a manner consistent with KRS 61.880(1), assuming those records existed. 1 Just as a public agency is not relieved of its obligations under KRS 61.880(1) in the presence of litigation, the Attorney General is not relieved of his obligations under KRS 61.880(2) merely because there is underlying litigation. 2 However, a public agency such as the District obviously cannot produce for inspection or copying that which it does not have; the analysis contained in 05-ORD-166 is determinative on this issue as well. Because a public agency discharges its duty under the Open Records Act by affirmatively indicating that no records exist, as the District ultimately did here, this office finds the response of the District was procedurally deficient but substantively correct.
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.
Footnotes
Footnotes
1 KRS 61.878(1), which precedes the twelve statutory exceptions to this general rule, provides:
The following public records are excluded from 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:
Although this provision expressly prohibits a party to litigation from obtaining through the Open Records Act records which he or she could not obtain through pretrial discovery, it does not prohibit a party to litigation or a third party from obtaining otherwise nonexempt public records in this manner. See Department of Corrections v. Courier-Journal and Louisville Times Co., Ky. App., 914 S.W.2d 349 (1996).
2 In OAG 80-278, this office held that even though litigation was in progress and regular discovery procedures were thus appropriate, "KRS 61.880(2) requires the Attorney General to given an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law. " Id., p. 3.