NOT TO BE PUBLISHED
June 19, 1996
In re: Julie A. Butcher/City of Nicholasville
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Nicholasville's denial of Ms. Julie Butcher's open records request to inspect certain records of the City.
Specifically, Ms. Butcher requested to inspect the following records:
1. All public records (KRS 61.870(2)(1994), regarding allegations of law enforcement officer misconduct by officers of the City of Nicholasville within the last ten (10) years. See University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992); Harris v. City of Louisville, Ky. App., 1995 WL 516410 (1995); KY OAG 91-131;
2. All public records (KRS 61.870(2)(1994), regarding disciplinary action and the consideration of disciplinary action of law enforcement officers of the City of Nicholasville within the last ten (10) years. See Harris v. City of Louisville, Ky. App., 1995 WL 516410 (1995): KY OAG 93- ORD-103;
3. All photographs of individuals who have complained either formally or informally of physical mistreatment or abuse of them by law enforcement officers of the City of Nicholasville within the last ten (10) years. See Harris v. City of Louisville, Ky. App., 1995 WL 516410 (1995); KY OAG 91-131;
4. All public records (KRS 61.870(2)(1994), related to all settlements and/or judgments in lawsuits against the City of Nicholasville Police Department for the last ten (10) years. See Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky. App., 43 K.L.S. 4, 11 (4/30/96);
5. All public records (KRS 61.870(2)(1994), related to the City of Nicholasville City Council considerations of: training of law enforcement officers of the City of Nicholasville, discipline of law enforcement officers of the City of Nicholasville and complaints made by citizens regarding the level of force used by law enforcement officers of the City of Nicholasville for the last ten (10) years. See University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992); Harris v. City of Louisville, Ky. App., 1995 WL 516410 (1995); KY OAG 91-131.
On behalf of the City, Mr. Dave Whalin, an attorney with Landrum & Shouse, denied Ms. Butcher's request, stating in part:
Clearly, your May 14 letter is an attempt to inspect records which you believe to be relevant to the claims in your pending civil litigation. KRS 61.878(1) specifically excludes from the application of the Kentucky Open Records Act any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. It is our position that the documents you requested, to the extent that any of the requested documents exist, are either beyond the scope of discovery as allowed by the Civil Rules and the standing Pretrial Order in the civil litigation, or are subject to various privileges, other exemptions, or both.
As counsel for Ms. Baker, you clearly stand in the shoes of a party to pending civil litigation and your request is beyond that which is provided by the Civil Rules and the standing Pretrial Order. As a result, the City hereby denies your Open Records Request.
In her letter of appeal to this office, Ms. Butcher states that the City's reliance upon the introductory language in KRS 61.878(1) is misplaced for two reasons. First, she argues that the City has taken the statutory language of KRS 61.878(1) out of context and secondly, that the City did not specify with particularity how all of the requested public records are beyond that which is provided by the rules of civil procedure governing pretrial discovery. In support of this position, Ms. Butcher argues:
First, KRS 61.878(1) provides a list of specifically excluded categories of public records which are available [o]nly upon order of a court of competent jurisdiction. If a court of competent jurisdiction orders that the specified categories of documents are discoverable, there is a further exception that that court may not authorize the inspection by any party of materials pertaining to civil litigation beyond that which is provided by the rules of civil procedure governing pretrial discovery. The responding public agency did not rely upon any of the specifically excluded categories for its denial, nor has any court ordered the inspection of any such category. Thus, the responding public agency takes the statutory language out of context by utilizing only the last phrase of the introductory sentence rather than the entire sentence with its complete meaning.
In further support of her position, Ms. Butcher, in referencing Fed.R.Civ.P. 26(b), states that the civil rules prevent the discovery of public records which are under a court's protective order and public records which are legally privileged such as direct communications between attorney and client. Ms. Butcher argues that the City has not and cannot make a claim for exception due to a court protective order or on the basis of legal privilege because neither exist in this instance.
After receipt of Ms. Butcher's letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Whalin provided this office with a response to the issues raised in the instant appeal. Mr. Whalin argues Ms. Butcher's open records request is no more than an attempted end run around the rules of discovery and that she has been unsuccessful in the pending civil litigation in her efforts to obtain many of the same documents which she now seeks through her open records request. We note, however, that Mr. Whalin did not provide any order of a court directing that these documents were nondiscoverable in the civil action. He further argues that prior opinions of this office support the position that there does not have to be a court's protective order in place before the City can rely on the provisions of KRS 61.878(1) to deny an open records request from a party to civil litigation.
The question presented in this appeal is whether the City of Nicholasville violated the Open Records Act in responding to Ms. Butcher's requests. For the reasons which follow, we conclude that the City's responses were violative of the Act to the extent it failed to meet its statutory burden in sustaining its denial of Ms. Butcher's requests.
This office has recognized that the presence of litigation does not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. At page 3 of OAG 89-65, we observed:
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 Open Records provisions in accordance with KRS 61.880. We do not, in making such observation, 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 Records provisions, than for those obtained under discovery procedures.
Nevertheless, the Attorney General observed in OAG 82-169:
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 record.
In the instant case, the City denied Ms. Butcher's request on the basis that the documents requested were beyond the scope of discovery as allowed by the Rules of Civil Procedure and the standing Pretrial Order in the civil litigation or subject to various privileges, other exceptions, or both.
The City does not explain in what respect or how all the requested records, which may or may not relate to the civil action, are protected from pretrial discovery by the Civil Rules or how the Pretrial Order operates to preclude release of the documents under the Open Records Act.
We conclude the City failed to meet its burden of proof that the requested records were exempt from inspection on the basis that they were beyond the scope of discovery under the civil rules and the standing Pretrial Order. Thus, its response in this regard was inconsistent with and in violation of the Open Records Act.
Moreover, we find that the City improperly relied upon KRS 61.878(1) as a basis for denying inspection of the requested records. KRS 61.878(1)provides:
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[.]
In considering the relationship between the Open Records Act and civil discovery, this office, in 95-ORD-18, explained this language of KRS 61.878(1) as follows:
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 withhold public records by invoking a new exclusion to public inspection based on the argument that the requested records have no possible bearing on the civil action to which they relate and are thus not discoverable under the civil rules because they lack relevance. CR 26.02(1). If, in fact, they have no bearing on the action, the records do not fall within the language of the amendment since they do not pertain[ ] to [the] civil litigation to which the requester is a party. Taken to its logical conclusion, the City argument would preclude a litigant from inspecting any and all records unrelated to litigation with the City because they have no possible bearing on that 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.
In its initial denial, the City did not set forth any specific statutorily recognized exceptions for nondisclosure and no court has authorized the disclosure of any properly excludable public records related to the litigation to a party. Thus, KRS 61.878(1) is an improper basis for denial of the requested records in the instant case.
In its subsequent response to the issue raised in Ms. Butcher's letter of appeal that the City did not rely upon any of the specifically excluded categories for its denial, Mr. Whalin, in his response on behalf of the City, states:
Ms. Butcher also complains that the city was not specific enough in its denial as to which provisions of KRS 61.878 were applicable. Her requests one (1) and two (2) come within the exclusions of KRS 61.878(h) to the extent that the request includes documents beyond those already disclosed in the civil litigation. See also City of Louisville vs. Courier Journal and Louisville Times, 637 S.W.2d 658 (Ky. App. 1982).
Her request under three (3) is excluded by KRS 61.878(1)(a). To the extent any such photographs exist, those photographs were obtained in the context of internal affairs investigations and the city does not have the authority to release those photographs or waive any privacy rights involved therein.
Request number four (4) is excluded by KRS 61.878(1)(l) to the extent that the requested documents are beyond those contained in the court records and include correspondence/communications between the city and its attorneys protected by the attorney-client and/or work product privilege.
The documents in request number five (5) come under the same exclusions as those in request number one (1) and two (2). Additionally, the City Council's discussions of those issues would have been in an executive session with their attorney and thus excluded by KRS 61.878(1)(l). To the extent that any of the information sought in request number five (5) is contained in the minutes of the public council meetings, Ms. Butcher is certainly welcome to make an appointment with Ms. Dean to review the minutes of the City Council meetings.
This portion of the City's response is procedurally deficient in that, although it cites the specific statutory exception upon which it relies to withhold the requested records, it fails to give a brief explanation how the exception applies to the records withheld. Under the Open Records Act, the agency must sustain its burden of establishing that the requested records fall within an exception of the Open Records Act which authorizes nondisclosure by following the statutory procedures required of an agency in responding to an open records request. KRS 61.880(1). As we have repeatedly recognized, mere invocation of the exception, without an adequate explanation of how the exception applies to the specific records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3). 93-ORD-110; 93-ORD-86; 93-ORD-43; 92-ORD-1020.
Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Accordingly, absent an explanation of how the exception applies to the specific records withheld, we are left with no alternative but to direct the release of the requested records to Ms. Butcher. Our decision is limited to the facts presented in this appeal and turns on the public agency's failure to comply with the procedural requirements of KRS 61.880 and sustain its burden of proof to justify the withholding of a public record.
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.
A.B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Julie A. Butcher
Gary C. Johnson Law Office
Suite 100 One Plaza East Building
101 Prosperous Place
Lexington KY 40509
Landrum & Shouse
400 West Market Street
Louisville KY 40202