June 14, 1996

In re: Laurie R. Kidd/City of Albany


This matter comes to the Attorney General on appeal from the denial of an open records request submitted by Winter R. Huff to the City of Albany. On February 7, 1996, Ms. Huff requested copies of various records relating to the Albany police department, and in particular, an employee of the department, Ernest Guffey. Those records were identified as policies and procedures, salary information and salary schedules, Mr. Guffey's applications for employment, communications of any kind concerning participating in the Law Enforcement Foundation Program Fund, minutes of council meetings at which Mr. Guffey's employment was discussed, advertisements for the positions for which Mr. Guffey was hired, and Mr. Guffey's application for the criminal justice training course. Having apparently received no response to the request, Ms. Huff, and an associate in her firm, Laurie R. Kidd, inquired about its status in a series of follow-up letters to the city clerk.

On April 19, 1996, Norbert H. Sohm, Albany city attorney, forwarded to Ms. Kidd a copy of his letter to Mr. Guffey's attorney, Luther C. Conner. The full text of that letter follows:

Enclosed please find copy of Request for Records of your client, Ernest Guffey, which were faxed to you in February for your comments or objections.

As of this date we have not heard from your office and therefore, must assume you have no objections.

If I have not heard from you on or before Wednesday, April 24th, the requested information will be supplied in full.

The requested records were not, however, released, nor was the request formally denied. As a consequence, Ms. Kidd initiated this appeal.

In a letter to this office dated May 15, 1996, Mr. Sohm explained the city's position. Noting that Ms. Kidd represents an individual who has been sued by Mr. Guffey in the Clinton Circuit Court for, among other things, “illegal[ly] . . . procuring other records of Mr. Guffey,” he asserts that “[t]his request, as made, is clearly a vehicle to circumvent the proper discovery procedures as defined by the Kentucky Rules of Civil Procedure and to avoid the judicial oversight of the Clinton Circuit Court.” In his view, “these issues should be properly brought before the court for a determination under rules 26 through 37.”

The question presented in this appeal is whether the City of Albany violated provisions of the Open Records Act in its handling of Ms. Huff's original request. For the reasons set forth below, we conclude that the city's response constituted both a procedural and substantive violation of the Open Records Act.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records, or to state the statutory basis for denying the request.

The City of Albany violated KRS 61.880(1) in failing to respond in writing, and within three working days, to Ms. Huff's February 7 open records request. Moreover, the city failed to cite any statutory basis for denying Ms. Huff's request, belatedly advising her, via a letter to this office, that, in the city's view, she has improperly attempted to circumvent proper discovery procedures. This is not an adequate basis for denial under the Open Records Act.

This office has long recognized that:

Inspection of records held by public agencies under 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. Public agencies must respond to requests made under the Open Records provision in accordance with KRS 61.880.

OAG 89-65, p. 3. However, we noted that in making such observation, we did not intend to:

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. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Record provisions, than for those obtained under discovery procedures.

Id. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.

Subsequent to the issuance of this opinion, the Open Records Act was amended. KRS 61.878(1), which codifies the exceptions to public inspection, now provides:

The following public records are excluded form 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[.]

In defining public records to exclude those that would be within the scope of a privilege against discovery in a civil action, the General Assembly has also indirectly confirmed that a public agency's duty under the Open Records Act is not suspended in the presence of litigation.

We therefore see no impediment to the use of the Open Records Act to secure nonexempt public records despite the presence of litigation. Recognizing that there are limitations inherent in obtaining records through this mechanism, when those records are to be used in litigation, we have nevertheless observed:

Although there is litigation in the background of the open records request under review, the 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.

Pursuant to KRS 61.878(1), Ms. Huff is not entitled to review records pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. However, as we noted at page 4 of 95-ORD-18:

This means that should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to that action, and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/party, though it might otherwise do so in its discretion. It does not mean that an agency can circumvent the Open Records Act by invoking a new exclusion to public inspection based on the argument that the records requested related to ongoing litigation. It does not alter our interpretation of the act, this office having long recognized that records which are privileged are not subject to inspection pursuant to KRS 61.878(1)(l) and related authorities. Nor does it alter our view that an agency's duty under the Act is not suspended in the presence of litigation.

We therefore find that the City of Albany improperly denied Ms. Huff access to the requested records.

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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Norbert H. Sohm

City Attorney

City of Albany

205 Cumberland Street

Albany KY 42602

Winter R. Huff

John G. Prather Law Office

P. O. Box 616

Somerset KY 42502-0616

Laurie R. Kidd

John G. Prather Law Office

P. O. Box 616

Somerset KY 42502-0616