Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Shively ("City") violated the Open Records Act in its disposition of Mike Thompson's request for emails by the City Mayor. For the reasons stated below, we find that the City violated the Act.
In his request, Mr. Thompson ("Appellant") sought any communication to or from the City's email account for the Mayor of the City from May 11, 2018, to August 1, 2018. The request was delivered on September 13, 2018, as documented by a US Postal Service delivery notice. Not having received a response, Appellant appealed to this office by letter dated September 20, 2018.
On appeal, Finn Cato, Shively City Attorney, responded on behalf of the City. He stated that he received the open records request on September 17, 2018, at the City council meeting from the City Clerk. He further explained that Appellant is represented by attorney Mary Sharp "in a matter of civil and administrative litigation involving the City of Shively and Mr. Thompson." The City Attorney provided this office a copy of an email from Ms. Sharp, August 3, 2018, wherein she stated:
Also, I wanted to see what the status is on getting a copy of his personnel file and a copy of the investigation. Usually I'd do that through Open Records but, as we agreed, we are past that and now any requests will be made through you as discovery.
The City, through Mr. Cato, sent an email to Ms. Sharp on September 18 advising her of the open records request received from Appellant, and reminding her of the agreement and that further requests would be handled as discovery through Ms. Sharp. The City stated that it did not receive a response to that email. On September 20, the City Clerk sent Appellant a letter, in care of his attorney, stating that it was the City's understanding that requests for information would be handled through the discovery process and not through the Open Records Act "due to the exemption in [KRS 61.878(1)(h)], as this case is still considered open." The City stated that it had not received a response to that letter.
On appeal, the City Attorney further stated that he is limited by Supreme Court Rule 3.130(4.2) 1 in terms of having direct contact with Appellant because he is represented by counsel. He also stated the City had addressed responses to Appellant's attorney rather than to Appellant himself.
In light of Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), Appellant's request "should be evaluated independently of whether or not [he] is a party or potential party to litigation." See 12-ORD-152 (agency erred in denying access to some records because they were "generally available through discovery" ). Parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests; however, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Act. See OAG 82-169; OAG 89-53; OAG 89-65; 97-ORD-98. Although there is litigation in the background of a request, a "requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2. Rather, the presence of litigation involving the parties "should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process." OAG 89-53, p. 4; OAG 89-65.
As the Court in Stewart observed, KRS 61.878(1) 2 "does not exempt or exclude all records from the 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." 41 S.W.3d at 863. Quoting OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Id. at 863; see Dep't. of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records")(original emphasis). See 11-ORD-108. Al
though we recognize the City's reliance on its agreement with Appellant's attorney regarding records requests as a mitigating factor, that agreement does not supersede Appellant's rights under the Open Records Act. The City must promptly comply with the Open Records Act in responding to Appellant's records 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 SCR 3.130(4.2) Communication with person represented by counsel:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
2 KRS 61.878(1) states, in pertinent part:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery . . .