July 1, 1996

In re: Allen K. Gailor/Office of the Attorney General


This matter comes to the Attorney General on appeal from his office's decision to release “handwritten notes taken by a State Auditor's Office employee (who is now an Attorney General's Office employee) of a meeting on July 15, 1994 attended by Rick Park.” On June 19, 1996, R. Keith Cullinan submitted an open records request for these handwritten notes based on the Kentucky Supreme Court's decision denying discretionary review of the Court of Appeals' decision in Harris v. City of Louisville, 94-CA-1840-MR (September, 1995). Shortly thereafter, the Attorney General advised Mr. Cullinan that the handwritten notes would be released to him on July 1, 1996. The Attorney General also notified Mr. Park of his intention to release the handwritten notes. On June 28, 1996, Allen K. Gailor, an attorney representing Mr. Park, initiated this appeal to the Attorney General pursuant to KRS 61.880, urging this office to “exclud[e] the notes in question from release.”

The question presented in this appeal is whether the Attorney General is authorized to review a public agency's decision to release public records, and issue an opinion stating that this decision violates provisions of KRS 61.870 to 61.884. We conclude that he is not so authorized.

KRS 61.880(2)(a) provides:

If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.

The language of this provision clearly indicates that the Attorney General's role in adjudicating open records disputes is narrowly circumscribed. He is only authorized to review a public agency's denial of a request to inspect a public record per KRS 61.880(2)(a), or a complaint that the intent of the Act “is being subverted by an agency short of denial of inspection . . .” per KRS 61.880(4). The Attorney General does not have authority to entertain a third party claim that disclosure of public records would constitute a clearly unwarranted invasion of personal privacy, or is inconsistent with any of the other exemptions codified at KRS 61.878(1)(a) through (l). Mr. Gailor and his client's remedy rests in the courts, and not in this office. Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994).

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. 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 proceedings.






Distributed to:

Pamela Murphy

Official Custodian of Records

Office of the Attorney General

P. O. Box 2000

Frankfort KY 40602

Allen K. Gailor

100 Professional Arts Building

730 West Market Street

Louisville KY 40202

Royden K. Cullinan

22nd Floor

220 West Main Street

Louisville KY 40202