Request By:
W. John Bourne
Bonita Hendren
Tommy Atteberry, Jr.
Charles Williams
Nathaniel Crenshaw
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Bonnieville violated the Kentucky Open Records Act in denying W. John Bourne's request for "[a]ll contracts that the [C]ity has with Williams & Williams," and "[a]ny billing records for legal services rendered" in regard to W. John Bourne. In a timely written response, Bonnieville City Clerk Bonita Hendren denied Mr. Bourne's request "[b]ecause the City is engaged in litigation and would be disadvantaged in that lawsuit by the release of the requested records[.]" By letter dated June 25, 2008, Mr. Bourne initiated this appeal from the denial of his request, noting that he is "currently being sued by the [C]ity for $ 5000 for [its] attorney fees for defending [it] against" his lawsuit. Because the City's position is contrary to
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), in which the Kentucky Court of Appeals upheld a line of decisions by the Attorney General finding that a request "should be evaluated independently of whether or not the requester is a party or potential party to litigation," the City's denial is without legal basis.
Upon receiving notification of Mr. Bourne's appeal from this office, Nathaniel Crenshaw responded on behalf of the City, initially advising that in 2007 Mr. Bourne, "acting in concert with others, embarked upon a common scheme and plan to harass, annoy and intimidate Bonnieville city officials, and to drain the City of its meager financial resources." In Mr. Crenshaw's view, the instant appeal "is a continuation of that common scheme and plan." On March 19, 2008, Mr. Bourne filed suit against the City in Hart Circuit Court, "seeking to void annexations which never existed ." 1 Because of this "common scheme and plan," the City filed a counterclaim in that suit. According to Mr. Crenshaw, the Hart Circuit Court "has dismissed all but one paragraph of Mr. Bourne's Complaint. Because Mr. Bourne rejected the City's counteroffer of settlement in late April and chose to proceed with his lawsuit, at this time, the attorney fees he refers to in his letter far exceed $ 5,000.00." As noted, "Mr. Bourne now seeks to obtain copies of contracts and billing records with regard to the ongoing lawsuit in which he is the party plaintiff."
Acknowledging that the City's "contracts, payments, and vouchers are generally open to inspection under the Open Records Act, " 2 Mr. Crenshaw argues that the City "has been the target of a pointless lawsuit, and now Mr. Bourne wants to circumvent the Hart Circuit Court by running to the Attorney General's office." Because the City "would be disadvantaged in the lawsuit by revealing the information he requested," Mr. Crenshaw contends the City's response was proper. Citing OAG 82-169, OAG 85-91, and KRS 61.878(1)(h), 3 none of which are persuasive when viewed in light of Kentucky Lottery Corporation v. Stewart and subsequent decisions, Mr. Crenshaw correctly asserts that the Act "cannot be used to subvert the Kentucky Rules of Civil Procedure." However, the analysis does not end there.
Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General 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, this office recognized:
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 (emphasis added). Elaborating upon this view, the Attorney General subsequently observed that "[n]o 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 progress." OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position, recognizing that requests under the Open Records Act "are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, p. 4. In the latter decision, this office clarified that such observations were not intended "to 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." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act in lieu of discovery; however, this office has not recognized the right of a public agency to deny access to public records on that 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. 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. Bourne "stands in relationship to" the City under the Open Records Act as any other person. Unless the records in question fall within one or more of the exceptions codified at KRS 61.878(1)(a)-(n), none of which apply here as the City has acknowledged, the City is required to provide Mr. Bourne with copies upon receipt of payment in accordance with KRS 61.874. In our view, 07-ORD-180 and 06-ORD-208 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
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 A copy of Mr. Bourne's complaint is attached to Mr. Crenshaw's response.
2 As a corollary to this position, the Attorney General has long recognized the right of the public to inspect records documenting the payment of public funds to attorneys hired to represent a public agency in litigation. 00-ORD-104, p. 7; 95-ORD-18; OAG 92-92; OAG 92-14. More specifically, the attorney-client privilege, codified at KRE 503, is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), but "does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10.
3 In OAG 92-92, the Attorney General elaborated upon OAG 92-14, reaffirming the view that information relating to attorney fees is privileged only if disclosure "would reveal confidential communications between the attorney and client," and finding that "the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, [neither of which the City is,] and premature disclosure of the information would harm the agency. KRS 61.878(1)(h)." 00-ORD-104, p. 8.