Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in the context of an Open Records appeal, and the Attorney General being sufficiently advised, this office finds that the Kenton County Master Commissioner, a quasi-judicial officer who "serves at the pleasure of the [judge or judges of the circuit court]" per KRS 31A.010(3) and CR 53.01, is not bound by the provisions of the Open Records Act. On many 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) . See also 04-ORD-219.
In responding to Aaron Curry's June 22, 2009, request for a "list of all current case numbers from Kenton County Commissioner sales that have 'excess proceeds' (aka surplus, overages, etc.) from 2004 to the present day," the Master Commissioner correctly advised him that "[a]s a quasi-judicial office, Master Commissioners clearly fall within the parameters of" Ex Parte Farley; however, the Master Commissioner also indicated a willingness to "honor the underlying principle" of the Open Records Act "whenever doing so does not interfere with the orderly operation of the courts." To that end, he advised Mr. Curry that "[j]udicial sales are a matter of public record, so if you have questions about excess proceeds in a particular case, you can always request access to the specific case file at the Kenton Circuit Clerk's [O]ffice." 1
Upon receiving notification of Mr. Curry's appeal, the Master Commissioner reiterated his earlier position, emphasizing that Mr. Curry "has full access to every judicial sales case in the Kenton Circuit Clerk's Office during regular office hours" in accordance with KRS 61.872(1) and (3)(a). Based upon the holding of Ex Parte Farley, and a recent unpublished opinion by the Kentucky Court of Appeals, 2008-CA-001266-MR (a master commissioner "'is part of the court, and his official acts are subject to its control and supervision'")(citation omitted), a copy of which he attached to his response, the Master Commissioner believes the "circuit court did not err" in the disposition of Mr. Curry's request. We agree.
In our view, the analysis contained in 02-ORD-235 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. A copy of 98-ORD-6, the decision upon which 02-ORD-235 is premised, is also enclosed. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2.
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.
Aaron CurryWilliam A. Humpert
Footnotes
Footnotes
1 This office notes that public agencies which are governed by the Open Records Act do not have to compile a list or create a record in order to comply with a request. 09-ORD-055, pp. 9-11.