Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Bourbon Circuit Court Clerk violated the Kentucky Open Records Act in denying Uriah Pasha's April 26, 2011, request for "[a] copy of the electronic transcript of the pre-trial hearing held November 16, 2006, in the case of Com. [sic] v. Tubbs, 05-CR-00101," by advising him that Bourbon County "did not begin using video recording until Aug 2007, therefore you will have to contact the court reporter directly to obtain any transcript." Mr. Pasha initiated this appeal, observing that "[a]udio is a [sic] electronic recording. The hearing was recorded by some electronic device, and that's the recording I am requesting." Upon receiving notification of Mr. Pasha's appeal from this office, Clerk Beverly Smits advised that the Bourbon County "[C]lerk's office did not audio record any circuit [court] hearings until August of 2007." Ms. Smits further advised, in partial compliance with KRS 61.872(4), that "recordings were done by the judge's official court reporter, Jackie Hatcher, who would have retained those recordings. " Citing KRS 26A.200 and Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978), Ms. Smits correctly observed in closing that court records are not "subject to statutory regulation, including the Kentucky Opens [sic] Records Act."
Because records in the custody of circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act; consequently, the Bourbon Circuit Court Clerk cannot be said to have violated the Act relative to Mr. Pasha's request. In our view, 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. "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.
Distributed to:
Uriah Pasha, # 092028Beverly Smits