February 25, 1994

IN RE: Jon L. Fleischaker/Department of Corrections


This appeal originated in a request for public records submitted by Courier-Journal staff writer, Deborah G. Yetter, to the Department of Corrections on September 17, 1993. Those records were identified as "[a]ll public records from the Corrections Department file on inmate Roger Gilliland . . . ." In a letter dated September 23, 1993, Ms. Karen Defew Cronen, Administrator for Offender Records, denied Ms. Yetter's request. Relying on KRS 61.878(1), Ms. Cronen explained:

The Department officials have been sued regarding Mr. Gilliland's employment at the Kentucky State Reformatory during 1991 and 1992 [Jarvis v. Wellman 92-0047 P(J)]. Documents relating [sic] his job assignment and any disciplinary write ups involving same are not provided pursuant to KRS 61.878(1) because the judge has stayed all discovery in this civil action.

In a followup letter dated October 12, 1993, Ms. Barbara W. Jones, General Counsel to the Department of Corrections, affirmed Ms. Cronen's denial of Ms. Yetter's request.

On behalf of his clients, the Courier-Journal and Louisville Times Company and Ms. Yetter, Mr. Jon L. Fleischaker submitted this appeal to the Attorney General. It is Mr. Fleischaker's position that the Department improperly relied on KRS 61.878(1) in denying Ms. Yetter's request. He argues:

The relevant provision of 61.878(1) states 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." (emphasis added). A new addition to the Open Records Act, this provision only limits public record accessibility under the Act to the parties of a particular ongoing civil litigation. Accordingly, the only person here even potentially affected by the exemption are the parties of Jarvis v. Wellman, cited by the Department as 92-0047P(J). It cannot be used by an agency to obstruct the rights of the general public to inspect public records.

The obvious purpose of this provision is to prevent litigants from using the Open Records Act to avoid civil discovery rules. Though rendered three years before the exemption was officially included in the statute, a 1989 Attorney General Opinion expressed the concern:

We do not . . . suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced process the rules of discovery attempt to provide.

OAG 89-65. Such, of course, is not the case here. Ms. Yetter and The Courier-Journal are not parties in Jarvis v. Wellman and are in no way affected by any discovery orders issued therein.

In Mr. Fleischaker's view, the Department's reliance on this new provision is misplaced.

With respect to Ms. Cronen's assertion that the court has stayed discovery in this civil action, Mr. Fleischaker

notes that she fails to produce any evidence that the stay "affects the agency's responsibilities to Ms. Yetter under the Open Records Act or that nondisclosure is required 'out of deference to the judicial process. OAG 92-126.'" He argues that because the court has not issued a protective or confidentiality order, the Department may release the records without placing itself in contempt of court. Mr. Fleischaker urges this Office to render a decision consistent with these views.

We are asked to determine if the Department of Corrections acted consistently with the Open Records Act in denying Ms. Yetter's request for documents relating to Roger Gilliland's job assignments and disciplinary reports. For the reasons set forth below, we conclude that the Department improperly denied the request.

As Mr. Fleischaker correctly observes, KRS 61.878(1) was amended by the General Assembly in 1992, and new language introduced to that section making it clear that the courts may not, under the Open Records Act, authorize the inspection of materials pertaining to civil litigation "by any party," beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. In his view, the "obvious purpose" of this amendment is to prevent litigants from using open records provisions in lieu of the discovery procedures provided by the civil rules.

While we do not share Mr. Fleischaker's certainty that the legislature's purpose in amending KRS 61.878(1) is "obvious," we believe that consistent with the principle of strict construction of the Act, now codified at KRS 61.871, the amendment can only be interpreted to apply to "parties" to litigation. We are not unmindful that this interpretation may invite abuse. Litigants may circumvent the provision by securing "materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery" through individuals who are not parties to litigation. Nevertheless, had it intended the amendment to have broader scope, the Legislature could have used the term "person." We must assume that the Legislature purposely employed the narrower term.

As we have previously noted:

We believe it is not for the Attorney General to weigh the equities or rationalize

exemptions which are not expressly set forth in the law. We interpret the law as it is and not as the way we think it should be. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.

OAG 80-54, p. 4. The term "party" is variously defined as "[a] person or group involved in a legal proceedings;" Webster's II New Riverside University Dictionary 858 (1988); "one of the litigants in a legal proceeding;" Random House Dictionary 642 (1990); "[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding . . . [a] party to an action is a person whose name is designated on record as plaintiff or defendant." Black's Law Dictionary 1010 (5th ed. 1979). Although the term may also be used informally to denote a person, we attach significance to the legislature's particular word choice. It is the opinion of this Office that the 1992 amendment to KRS 61.878(1) applies only to parties to litigation, and that the Department improperly relied on the exception in denying Ms. Yetter's request.

We are not persuaded that the entry of an order staying discovery in a civil action to which the documents may or may not relate, and to which the requester is not a party, operates to preclude release of those documents under the Open Records Act. At page 3 of OAG 89-65, we observed:

Inspection of records held by public agencies under the Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery.

While, as noted, this Office has acknowledged that the Open Records Act should not be used by parties to litigation as a substitute for discovery, a principle now codified at KRS 61.878(1), and while we have repeatedly recognized that the Act in no way supersedes a protective order, or other court ordered seal of confidentiality, when a public agency is properly

before a court as a party to litigation,(1)

Ms. Yetter is not a party to the litigation and there is no such order in the present appeal.

We have examined the motion to stay discovery pending disposition of the defendants' motion to dismiss, submitted by the Department of Corrections in Jarvis v. Wellman, supra, and the order entered by the United States District Court in September, 1992. Nothing in that motion or order suggests that the materials pertaining to the litigation have been sealed or placed under a protective order. Accordingly, the stay does not affect the Department's statutory duties under the Open Records Act to release documents to nonparties like Ms. Yetter.

We therefore conclude that the Department of Corrections improperly denied Ms. Yetter's request under KRS 61.878(1). The Department should make the records identified in her request available for immediate inspection.

The Department of Corrections may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.






Distributed to:

Ms. Karen Defew Cronen

Administrator, Offender Records

Department of Corrections

State Office Building

Frankfort, KY 40601

Hon. Barbara W. Jones

General Counsel

Department of Corrections

State Office Building

Frankfort, KY 40601

Hon. Jon L. Fleischaker

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville, KY 40202

Ms. Deborah G. Yetter

Staff Writer

The Courier-Journal

525 West Broadway

P. O. Box 740031

Louisville, KY 40201-7431

1. 1.See, e.g., OAG 80-353; OAG 89-22; OAG 91-121; OAG 92-119; OAG 92-126.