Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
John Carrara initiated this Open Records Appeal by letter dated June 12, 2017, challenging the disposition by John C. Middleton, Kenton County Circuit Court Clerk, of his May 26, 2017, request for "a copy of all Court Orders within this case file [Case No. 10-CR-00421], from the date this case was initiated in the District Court through today." Mr. Carrara asked the Clerk to mail a certified copy of all records to his attention but advised that he should not be charged for the copy or postage costs due to being declared indigent during his trial. On June 5, 2017, the Clerk advised Mr. Carrara that his indigent status only applied while his case was pending but agreed to send him a certified copy of the 221 pages in his file upon receipt of payment in the amount of $ 65.25 (221 pages at 25 cents per page + $ 5.00 in postage costs + $ 5.00 for a certified copy) .
Upon receiving notification of Mr. Carrara's Appeal from this office, the Clerk noted that court records are not subject to provisions of the Open Records Act, citing KRS 26A.200, Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978), and prior decisions by this office in support of his position. The Clerk also correctly observed that "criminal case records kept and maintained by circuit court clerks are exactly the type of records contemplated by KRS 26A.200" and Ex Parte Farley . Thus, case records "are made available pursuant to the rules of the [Kentucky Court of Justice], and a request for such records under the Open Records Act is improper." The cited authorities validate the Clerk's position; accordingly, discussion of his remaining argument is unwarranted.
Because records in the custody of circuit court clerks are properly characterized as court records, to which the Open Records Act does not apply, the Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act; consequently, the actions of the Kenton County Circuit Court Clerk relative to Mr. Carrara's request(s) did not violate the Act. The analysis contained in 98-ORD-6, a copy of which is attached hereto and incorporated by reference, is controlling on this issue. "Simply stated, disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 must not be named as a party in that action or in any subsequent proceeding.