Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Morgantown violated the Open Records Act in denying Melissa and Barry Embry's November, 2010, requests for records relating to the Huff-Ingram project, including the Spring, 2010, engineering report, contracts, correspondence, permits, and plans, "because of litigation." As the Kentucky Supreme Court recently declared in an opinion issued in October, 2010:
The civil litigation limitation [KRS 61.878(1)] 1 is an explanation of the court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency.
Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010) (emphasis in original). The threat of litigation, and indeed the presence of ongoing litigation, does not relieve the City of Morgantown from its statutory duty to afford the Embrys access to, and copies of, nonexempt records in its custody. The Kentucky Supreme Court has spoken on this issue, and the city's position is legally untenable.
In correspondence directed to this office after the Embrys initiated their appeal, City Attorney Jonathan S. King narrowly addressed their request for the "engineering analysis prepared by DDS Engineering, PLLC, . . . [for] the City of Morgantown specifically because of and in preparation for threatened litigation by Barry and Melissa Embry. . . ." Continuing, Mr. King observed:
Because of the threat of immediate litigation, the City of Morgantown has taken the prudent step of preparing for the threat to be made good and so has prepared for the expected litigation. No lawsuit has been filed to date, however the threat is still very real and the parties should be allowed to circumvent the normal rules of discovery in litigation through the open records act.
It was his position that the "engineering work is an expert report prepared for litigation" and therefore beyond the reach of the Open Records Act.
Respectfully, we disagree. No public record as defined in KRS 61.870(2) is beyond the reach of the Act although some enjoy protection from public inspection under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). The City of Morgantown failed to cite any of the statutorily recognized exceptions, denying the Embrys' request "because of litigation." Kentucky's courts have twice rejected this argument as "not supported by the clear language of KRS 61.878(1)," most recently in October of this year. In Wyrick, the Supreme Court quoted extensively from
Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 863 (Ky. App. 2001), reaffirming that KRS 61.878(1) "does not exempt or exclude all records from 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." Wyrick at 714 quoting Stewart. 2 A copy of Wyrick is attached hereto as dispositive of the issue on appeal.
The City of Morgantown violated both the procedural and substantive requirements of the Open Records Act in failing to identify the statutory exception authorizing, in its view, nondisclosure of the records identified in the Embrys' request per KRS 61.880(1). Because the city advanced no other argument in support of its denial of the Embrys' request, we find that it violated the substantive provisions of the Act by failing to produce for inspection and copying nonexempt public records. Accord, 10-ORD-142.
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.
Barry and Melissa EmbryEva J. HawesAnita GossettJonathan S. King
Footnotes
Footnotes
1 At no point in its correspondence with the Embrys did the City of Morgantown cite KRS 61.878(1). We must, however, infer from its position that its denial is postulated on the mistaken belief that KRS 61.878(1) precludes a party to litigation, or person who may become a party to litigation, from exercising his rights under the Open Records Act.
2 The city did not, in either its original or supplemental response, characterize the report as "work product" generated in anticipation of litigation or after litigation was commenced, a precondition to invocation of KRS 61.878(1). We do not mean to suggest that KRS 61.878(1) is unavailable to public agencies as a basis for denying an open record request, only that in order to meet the agencies' statutory burden of proof, they must establish that all conditions precedent for its invocation have been met. The City of Morgantown failed to make this showing and meet its burden of proof. KRS 61.880(2)(c).