Request By:
Mr. Scotty Hedgespeth
Hon. Eddie Rogers
John D. Bertram, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Taylor County Judge/Executive violated the Open Records Act in its disposition of Scotty Hedgespeth's January 17, 2017, request for certain records relating to "the Jones Creek Bridge construction." For the reasons that follow, we find that the County Judge/Executive violated the Act.
Mr. Hedgespeth is currently involved in litigation in Taylor Circuit Court against the Taylor County Fiscal Court concerning the Jones Creek Bridge construction. His letter, received on January 18, 2017, requested the following records related to the Jones Creek Bridge:
1) the new bridge inspectors' report(s); their name(s) and license numbers, and date(s) they were on site.
2) concrete test cylinder results per load of concrete; dates cylinder tests were submitted.
3) name of person(s) who signed off to allow traffic access and the date.
4) road center line deed (proof of construction site, ownership, deed book, page number and date).
5) county road inventory numbers for Jones Creek Road including any prior inventory numbers and date(s) changed; name of person(s) authorizing changes(s) [ sic ] of dates.
On January 23, 2017, Taylor County Attorney John D. Bertram forwarded a copy of the request to Mr. Hedgespeth's attorney in the pending litigation, stating:
This is exempt from open records, due to the pending litigation, in my opinion. If you disagree, please immediately advise. I will not be making any response to your client, and I have advised the County Judge Executive to make no response.
Mr. Hedgespeth's appeal was received in this office on February 1, 2017.
On February 7, 2017, Mr. Bertram replied to the appeal, arguing as follows:
It is respectfully our position that, in accordance with Kentucky Revised Statute Chapter 61 and case law interpreting same, matters which are pending in litigation are exempt from open records requests when the requests are of the same matter being litigated. His requests, which frankly have already been completely exhausted in court, are limited to the formal discovery process in the pending litigation.
In 16-ORD-176, we recently reiterated that under the prevailing case law and prior decisions of this office, the presence of pending litigation "creates no free-standing exemption from open records." We attach a copy of this decision and adopt its reasoning as the basis for our present decision. Accordingly, we find that the Taylor County Judge/Executive violated the Open Records Act by refusing to respond to Mr. Hedgespeth's request.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.