TO BE PUBLISHED
February 25, 1994
IN RE: Jon L. Fleischaker/Department of Corrections
OPEN RECORDS DECISION
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
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
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
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.
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
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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Karen Defew Cronen
Administrator, Offender Records
Department of Corrections
State Office Building
Frankfort, KY 40601
Hon. Barbara W. Jones
Department of Corrections
State Office Building
Frankfort, KY 40601
Hon. Jon L. Fleischaker
Wyatt, Tarrant & Combs
Louisville, KY 40202
Ms. Deborah G. Yetter
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.