NOT TO BE PUBLISHED
September 12, 1996
In re: Glenn E. Bone/City of Louisville
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Louisville's denial of Mr. Glenn Bone's open records request to inspect the report, results or findings of any evaluation or study that was conducted in which a determination was made, as to whether the police recruit written examination that is currently being used to test for the position of police recruit, is culturally or racially biased.
Mr. David Leightty, Senior Attorney, City of Louisville, denied Mr. Bone's request, stating:
Because your open records request to the Chief of Police pertains directly to a lawsuit filed by yourself and now pending, it is inappropriate to resolve this request for information through the Open Records Act. The request should be made by your attorney through the court discovery process (which among other things allows for 30 days to respond), rather than through the Open Records Act (which allows only 3 days to respond). Therefore your request must be respectfully denied as exempt under KRS 61.878(1) in that the materials pertain to civil litigation.
Please be advised that the City, in cooperation with counsel for the Civil Service Board, is currently working on pre-trial disclosure required under Federal Rules of Civil Procedure; the information that will be disclosed to your counsel may resolve the inquiries stated in your open records request.
Finally, because the lawsuit is now pending, I must ask that you direct all further communication with my client, the Louisville Division of Police and its agents and managers, through myself or through my co-counsel, Thomas Lukins, here in the City Law Department.
In his letter of appeal, Mr. Bone acknowledges that he is involved in litigation with the City but argues that the pending litigation does not exempt his right to inspect public records under the Open Records Act.
On August 14, 1996, this office sent its Notification of Receipt of Open Records Appeal to Mr. Bone and to Mr. Leightty.
On August 21, 1996, Mr. Leightty provided this office and Mr. Bone with a response to the issues raised in the letter of appeal. In this response, Mr. Leightty indicates that no record exists which precisely meets the description of the record requested. In explaining the City's initial response to Mr. Bone's open records request, Mr. Leightty states, in part:
The reason we did not respond simply by stating that no such documents exist was that documents similar to, although not strictly responsive to, what are described in the open records request do exist. The documents in question pertain to the validation, under Title VII of the Federal Civil Rights Act of 1964, of the Civil Service Board testing procedures.
These documents may be germane in Mr. Bone's pending lawsuit against both the City and the Civil Service Board, and consequently counsel for both the Civil Service Board and the City are compiling them to comply with disclosure requirements applicable under the Federal Rules of Civil Procedure. At the time provided for in those rules, the documents, such as they are, will be produced as required by those rules.
For the reasons which follow, we conclude that the City of Louisville's initial response was procedurally deficient to the extent it did not advise Mr. Bone as to whether or not the requested documents existed. Mr. Leightty, in the response to the letter of appeal, indicated that the City had documents similar to, although not strictly responsive to, what are described in the open records request do exist.
KRS 61.880(1) requires that an agency advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, the agency should list each document which it will not permit the requesting party to inspect and state how the exception relied upon applies to the particular document withheld from inspection. If a record of which inspection is sought does not exist, the agency should specifically so indicate.
In the instant case, Mr. Bone asked to inspect a report or document in which a determination was made that the current police recruit written examination being used was culturally or racially biased. This request is sufficiently specific for the City to determine if such a document exists. If the City has a record responsive to this request, it must so advise and either provide the record for inspection or cite an exception which allows it to deny inspection and provide a brief explanation as to how the cited exception applies to the record withheld.
We further conclude that the City improperly relied upon KRS 61.878(1) as a basis for denying Mr. Bone's open records request.
Mr. Leightty acknowledges that the City has documents similar to the records requested by Mr. Bone, but did not, in a strict sense, have records that literally matched the description of the requested records. He argues that because these documents in question relate directly to Mr. Bone's lawsuit, they are exempt from disclosure under KRS 61.878(1), which provides 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. It is the City's view that Mr. Bone's attempt to obtain these documents under the Open Records Act is an attempt to do an end-run around discovery provided for by the Federal Rules of Civil Procedure and the court Order in the instant action adopting the Agreed Litigation Plan and Discovery Schedule of the parties.
We have reviewed a copy of the court order and the adopted discovery schedule provided by Mr. Leightty in his response and nothing in that order or schedule suggests that the materials pertaining to the litigation have been sealed or placed under a protective order.
This office has acknowledged that the Open Records Act should not be used by parties to litigation as a substitute for discovery. 96-ORD-138. We have 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. 94-ORD-19. However, since nothing in the court's order or adopted discovery schedule in this case suggests that materials pertaining to the litigation have been sealed or placed under a protective order, the City's statutory duties under the Open Records Act are not affected by the presence of the litigation.
In OAG 89-65, this office 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. 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.
KRS 61.878(1), which codifies the exceptions to public inspection, 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[.]
(Emphasis added.) By defining public records to exclude those that would be within the scope of 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. 96-ORD-138.
We therefore see no impediment to the use of the Open Records Act to secure nonexempt 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 nevertheless 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 records.
In the instant case, the City failed to meet its burden of establishing that the requested records were exempt from inspection because they were beyond the scope of discovery under the civil rules. See 96-ORD-144. Accordingly, we conclude that the City improperly cited KRS 61.878(1) as a basis for denying inspection of the records. As noted above, if the City has records responsive to Mr. Bone's request, it must so advise and either provide the record for inspection or cite an exception which allows it to deny inspection and provide a brief explanation as to how the cited exception applies to the record withheld.
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
Glenn E. Bone
1032 S. 6th Street
Louisville KY 40203
Department of Law
City of Louisville
Louisville KY 40202-2771