December 10, 1996

In re: Errol Cooper/Lexington Fayette Urban County Government

Open Records Decision

This matter comes to the Attorney General on appeal from the Lexington Fayette Urban County Government's denial of Errol Cooper's September 24, 1996, request for "[t]he measurements taken by your Investigating Officers" at the scene of the March 16, 1996, accident involving Officer James Burdette and Mr. Cooper's client, Leigh Young. On behalf of the Lexington Fayette Urban County Government, Edward W. Gardner, director of litigation, denied Mr. Cooper's request. Relying on KRS 61.878(1), he maintained that because the requested records "relate to an accident involving an Urban County Government vehicle which may result in civil litigation, KRS 61.878(1) is applicable." "Further," Mr. Gardner noted, Mr. Cooper's request "is made on behalf of Leigh Young, the potential plaintiff in the lawsuit against the Urban County Government."

In a follow-up letter dated November 15, Glenda D. Humphrey, corporate counsel, elaborated on LFUCG's position. Ms. Humphrey acknowledged that the requested information is recorded in a hit and run log by the investigating officer, but distinguished the authorities cited by Mr. Cooper in support of disclosure.(1) Continuing, she observed:

Under the rules of discovery, Mr. Cooper would be entitled to information prepared in anticipation of litigation only upon a showing that he had a "substantial need of the materials in the preparation of his case and he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." See CR 26(3)(a). It is up to a Court to determine whether this material is discoverable. Mr. Cooper is attempting to avoid this rule by requesting the information pursuant to the Open Records Act and prior to filing suit in this matter. A potential party should not be entitled to potentially non-discoverable material simply because he made an open records request prior to filing suit. The Open Records Act should not be used as an attempt to avoid the Civil Rules of Discovery.

For these reasons, Ms. Humphrey reaffirmed LFUCG's initial denial of Mr. Cooper's request.

We are asked to determine if LFUCG properly relied on KRS 61.878(1) in denying Mr. Cooper's request. For the reasons set forth below, and upon the authorities cited, we conclude that LFUCG's reliance on this provision was misplaced.

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 95-ORD-18, at page 4, this office construed the cited provision, remarking:

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.

Based on this reasoning, we held that records which in no way pertained to litigation between the public agency and the requester could not be withheld under this provision, lest the provision be employed to swallow the general rule of disclosure for the public good. KRS 61.871.(2)

In an earlier decision, the Attorney General rejected a public agency's reliance on KRS 61.878(1) to withhold nondiscoverable public records from a requester who was not a "party" to litigation, concluding that the legislature purposely employed the narrower term "party," rather than the word "person." 94-ORD-19; Department of Corrections v Courier-Journal and Louisville Times Co., Ky. App., 914 S.W.2d 349.

In Department of Corrections, the Kentucky Court of Appeals recognized:

In KRS 61.871 the Legislature expressly mandates the rule of strict construction of exceptions provided for by KRS 61.878. It is in that light that we, like the Attorney General and the Franklin Circuit Court, attach similar significance to the Legislature's word choice, and conclude that since the Courier-Journal is not a "party" in the Jarvis litigation, KRS 61.878(1) is inapplicable and the documents requested are open for inspection pursuant to KRS 61.872.

It is the same rule of strict construction that we apply in the instant appeal. Litigation has not been initiated. Neither Ms. Young, nor Mr. Cooper acting on her behalf, is a "party" within the meaning of KRS 61.878(1). Accordingly, this provision is inapplicable.

This office has recognized the potential pitfalls of using the Open Records Act as a discovery tool. See, e.g., OAG 89-65, p. 3 (holding that to use the Act for this purpose "tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide"). Nevertheless:

Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation [or the threat of litigation]. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation [or when litigation is threatened]. Requests under the 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 provisions in accordance with KRS 61.880.

OAG 89-65, p. 3. The fact that litigation against LFUCG has been threatened, and the requested records are relevant to that litigation does not constitute an adequate basis for denial under the Open Records Act. For this reason, LFUCG is obligated to disclose that portion of the hit and run log containing the measurements taken at the scene of the accident involving Ms. Young and Officer Burdette.

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

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Errol Cooper

Attorney at Law

206 Lexington Building

201 West Short Street

Lexington KY 40507

Edward W. Gardner

Director of Litigation

Lexington Fayette Urban County Government

200 East Main Street

Lexington KY 40507

Glenda D. Humphrey

Corporate Counsel

Lexington Fayette Urban County Government

200 East Main Street

Lexington KY 40507

1. LFUCG does not raise as a defense that Mr. Cooper requested information (measurements), rather than records. Requests for information, generally, need not be honored. See, e.g., 96-ORD-150; 96-ORD-146; 95-ORD-150; 95-ORD-131. Instead, LFUCG elected to treat his inquiry as a properly framed open records request, acknowledging the existence of a record (the hit and run log) containing the information he sought.

2. In 95-ORD-18, the City of Louisville denied a request for a city attorney's travel records related to his attendance at a conference because the information could not "be obtained under the Kentucky Rules of Civil Procedure." The City was then engaged in litigation with the requester and his family. We concluded that the provision:

. . . 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.