April 29, 1997

In re: David B. Pearce/Transportation Cabinet

Open Records Decision

This matter comes to the Attorney General on appeal from the Transportation Cabinet's responses to the open records requests made by David B. Pearce, Esq., to inspect certain of the Cabinet's records.

By letter dated January 28, 1997, Mr. Pearce submitted the following request:

Pursuant to the Open Records Act, KRS 61.870 et seq., I hereby request copies of any documentation completed by Department of Highways personnel for a paving project which was underway on KY 122 near Collins, Pike County, Kentucky on May 26, 1994. The project was completed by Mountain Enterprises, Inc. pursuant to Equipment Rental Service Contract No. 093-0008 at the request of the Kentucky Department of Highways Maintenance Department. The job covered approximately 3 miles from Shelbiana, Kentucky to Robinson Creek Bridge.

Please provide copies of any and all documentation including Resident Engineer's Daily Diary Entries, Daily Inspector's Reports or any other documentation completed by Department of Highways personnel regarding this project.

On January 30, 1997, Mr. Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, with the Cabinet, responded to Mr. Pearce's request, stating:

Please be advised that our District Twelve Office which is located in Pikeville, Kentucky, is currently researching their files for the requested information. We expect to receive a response by Friday, February 7, 1997. At that time, anything not protected under the Open Records Law will be made available to you.

On March 18, 1997, having received no subsequent written response to his January 28, 1997 request, Mr. Pearce resubmitted his request to Mr. Roberts.

No response was received from Mr. Roberts. However, by telefax dated March 25, 1997, Mr. Richard H. Deters, General Counsel, Transportation Cabinet, responded to the resubmitted request, stating:

I am sure you are well aware that the Cabinet is represented by counsel in the above referenced matter [Connie Roberts, et al v. Charles Gallion, et al]. I refer you to the Code of Ethics which prohibits contact by counsel with another party when that party is represented by counsel. Please refer any further discovery requests to the Cabinets [sic] attorney of record.

By letter dated March 26, 1997, Mr. Pearce explained to Mr. Deters that he had elected to submit an Open Records Request in the case as opposed to a discovery request because the Commonwealth was joined as a Third-Party Defendant, for apportionment purposes only, and he felt that the Commonwealth would be dismissed from the case in the immediate future and a formal discovery request would be lost in the shuffle. In response to Mr. Deters's objection to his open records request on ethical grounds, Mr. Pearce argued:

After receiving your telefax, I reviewed KRS 61.878(1) in an effort to determine the specific statutory provision which relieves the Transportation Cabinet from having to respond to a Open Records Request simply because litigation is pending. I can not find any statutory support for your position. Certainly, if a person who was not involved in the pending litigation submitted a request similar to that submitted by Mountain Enterprises in this case, the Transportation Cabinet would be obliged to respond. Therefore, I fail to understand the legal basis for your refusal.

I am also well acquainted with Rule 4.2 of the Kentucky Rules of Professional Conduct. I do not believe that SCR 3.130-4.2 prohibits the utilization of a statutorily prescribed process for obtaining records from a state agency which are by definition declared open to public inspection. Certainly if the request is re-submitted in the immediate future after the Highway Department has been dismissed, your client will be required to honor any request or provide a sound statutory basis for denial.

In closing, Mr. Pearce stated that if he did not hear from the Cabinet within the next few days, he would treat Mr. Deters's letter as a denial of his open records request.

Having received no further response from the Cabinet, Mr. Pearce appealed the Cabinet's responses to this office. In his letter of appeal, he argues that the Cabinet has not cited a statutory basis or other legal authority for the apparent denial of his request which relieved it of its obligation to provide an appropriate response to an open records request. Mr. Peace further indicated that before sending his response to Mr. Deters, he contacted Stuart Cobb, Assistant Attorney General, counsel of record for the Commonwealth in the underlying litigation, to inform him of his intended course of action and provided him with a copy of his subsequent letter to Mr. Deters.

On April 2, 1997, we sent the Cabinet a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Mr. Pearce's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Deters, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Deters, citing SCR 3.130(4.2), states, in part:

KBA E-65 (May 1973) states that an attorney may not contact an opposing party to obtain information relating to a pending controversy without consent of the opposing counsel. Commissioner Roberts, to whom the request is made, is a high level policy making official with access to confidential information as set out in KBA E-213 (May 1979) and KBA E-322 (September 1988).

Mr. Pearce has not obtained the consent of Stuart Cobb, counsel for the Cabinet, and has requested information directly related to the subject litigation. The Cabinet does not believe the Open Records Act addresses ethical considerations.

The Cabinet concedes that the records at issue are subject to the Open Records Act in all other respects. The Cabinet is not aware of the Attorney General's authority regarding questions of legal ethics. We are asked to determine whether the Cabinet's actions were in accord with the Open Records Act. For the reasons which follow, we conclude that the Cabinet was procedurally and substantively deficient in failing to provide a written response consistent with applicable provisions of the Act.

KRS 61.880(1) requires that an agency, after receipt of a request, respond in writing within three business days notifying the requester as to whether it will comply with the request. If the agency denies all or part of the request, its denial must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1).

To the extent the Cabinet failed to respond to Mr. Peace's resubmitted request in writing, setting forth the specific statutory authority for denying him access to the requested records and explaining how the cited exception applied to the records withheld, its actions were procedurally and substantively deficient and in violation of the Open Records Act.

Reference to the Kentucky Rules of Professional Conduct, SCR 3.130(4.2), is not a sufficient basis to meet an agency's burden of establishing that the requested records are exempt under an applicable provision of the Open Records Act. A violation of the Rules of Professional Conduct is not one of the statutory exemptions from disclosure set forth in KRS 61.878(1).

This office has previously recognized that the Open Records Act should not be used by parties to litigation as a substitute for discovery. 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 provisions in accordance with KRS 61.880.

However, we further noted in that opinion that 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 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 Cabinet raises the issue of the interplay of Rule 4.2 of the Kentucky Rules of Professional Conduct and a request under the Open Records Act, when the public agency is a party to the litigation and represented by counsel.

KRS 61.880(2) sets forth the role of the Attorney General relative to matters arising under the Open Records Act. That statute provides, in part, that if requested by the person seeking inspection, the Attorney General shall review the denial and issue a written opinion as to whether the agency acted pursuant to the provisions and terms of the Open Records Act. As noted above, we concluded that the Cabinet's actions were inconsistent with the Act.

Rule 4.2 of the Kentucky Rules of Professional Conduct provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Questions regarding whether conduct of attorneys or a particular set of facts constitutes a breach of the Kentucky Rules of Professional Conduct or violate discovery proceedings or court rules of procedure would have to be brought before the appropriate forum, such as the Kentucky Bar Association or the court having jurisdiction over the litigation and not before the Attorney General in an Open Records appeal. We note that from the facts provided this office that communication between the relevant counsel regarding this open records request has been in process.

Accordingly, the Cabinet should respond to Mr. Peace's request regarding the requested records in accordance with the requirements of KRS 61.880(1). If all or part of the request is denied, the Cabinet should set forth the specific statutory exemption under KRS 61.878(1) which authorizes withholding the requested record and briefly explain how the cited exemption 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 KRS61.880(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.



James M. Ringo

Assistant Attorney General

# 392

Distributed to:

David B. Pearce

Sturgill, Turner, Barker & Moloney

155 East Main Street

Lexington KY 40507

Ed Roberts, Commissioner

Custodian of Records

Department of Administrative Services

Transportation Cabinet

State Office Building

Frankfort KY 40601

Richard H. Deters

General Counsel

Transportation Cabinet

State Office Building

Frankfort KY 40601