NOT TO BE PUBLISHED

96-ORD-173

August 9, 1996

In re: Daniel J. LaBelle/Administrative Office of the Courts and Pulaski Circuit Court Clerk

Open Records Appeal

This matter comes to the Attorney General on appeal from the actions of the Administrative Office of the Courts and the Pulaski Circuit Court Clerk relative to two open records requests submitted by Daniel J. LaBelle. Because the agencies' responses to Mr. LaBelle's requests raise common questions of law, they are consolidated for purposes of appeal.

On May 16, 1996, Mr. LaBelle requested that the Administrative Office of the Courts furnish him with a “copy of the sworn or affirmed Oath of Office of Pulaski County's District Court Judge, Michael Henery [sic].” On May 24, 1996, Sara Boswell Dent, staff attorney, responded to Mr. LaBelle's request, advising him as follows:

This office is not subject to the Kentucky Open Records Law pursuant to Ex Parte Farley, 570 S.W.2d 617 (1978) and KRS 26A.200 to .220. Additionally, the oath of office taken by judges in the Commonwealth is not recorded or filed with this, or any other, office. The required oath administered by the Chief Justice may be found in §228 of the Kentucky Constitution.

In a follow-up letter, Ms. Dent elaborated on A.O.C.'s position. Citing various opinions of this office, as well as the Kentucky Supreme Court's decision in Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), and KRS 26A.200 to .220, she reiterated that records of the court are not governed by the Open Records Act. Moreover, Ms. Dent explained, the oath requested by Mr. LaBelle is not required to be filed under KRS 62.010. She observed:

Oaths required to be in writing or subscribed are listed under KRS 62.010 in the Cross-References section. Judges are not listed and therefore require nothing more than having the oath prescribed by §228 of the Kentucky Constitution administered.

On May 22, 1996, Mr. LaBelle requested “a copy of [the May 4, 1996,] court case #95-T-02138” from the Pulaski Circuit Court Clerk. In a letter dated May 29, 1996, Deputy Clerk Sheila Sears provided Mr. LaBelle with copies of the judge's calendar, citation, and case jacket, but advised:

If you are requesting a copy of the tape there is a ten ($10.00) dollar charge for the tape, as it has to be sent to the Administrative Office of the Courts to be copied.

On June 17, Mr. LaBelle sent a $10.00 money order to the circuit court clerk to obtain a copy of the tape.

In his letter of appeal, Mr. LaBelle questions whether any state agency is exempt from the Open Records Act. In addition, he challenges the $10.00 copying charge which the Pulaski Circuit Court Clerk's office imposed to reproduce the taped transcript of the May 4 proceedings, asserting that this is “a way to generate revenue rather than serve the public.” He asks that this office render a decision stating whether the courts and judicial agencies are bound by the provisions of the Open Records Act. Our decision is premised on KRS 26A.200, KRS 26A.220, and Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), in which the Kentucky Supreme Court held that although “[t]here is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . [s]ome details of that law . . . present interferences that we regard as inconsistent with the orderly conduct of our own business, and those we do not accept.” Farley at 625. We therefore find that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court's rules and regulations governing access to its own records, and are accepted as a matter of comity.

KRS 26A.200 provides, in part, that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other court, agency, or officer responsible to the Court, are the property of the Court, and are subject to the control of the Supreme Court. Thus, court records enjoy a special status, and are placed under the exclusive jurisdiction of the Court. OAG 78-262; OAG 85-9; OG 87-53; OAG 90-4.

KRS 26A.220 provides:

All public officers, public agencies, or other persons having custody, control or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.

In Ex Parte Farley, at 624, the Kentucky Supreme Court observed:

On its face, the Open Records Law, KRS 61.870 - 61.884, incl. (Ch. 273, Acts, of 1976), appears to apply. Whether its provisions conflict with or are harmonious with KRS 26A.200 - 26A.220, incl. (Ch. 22, Acts of 1976 Ex. Sess.), we need not decide, because we are firmly of the opinion that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.

This opinion establishes beyond cavil that the General Assembly has placed in the hands of the Chief Justice the handling and regulation of the records of the court. Disputes relating to records access must be resolved by the courts.

Moreover, and as Ms. Dent correctly notes, there is no requirement that the district court judge's oath be in writing or subscribed. Simply stated, KRS 62.010 does not require the recording of the oath. Assuming for the sake of argument that the records of the courts and judicial agencies were subject to statutory regulation, it is apparent that the Administrative Office of the Courts could not produce a nonexistent record. See also, 96-ORD-49 (holding that county clerk could not provide requester with copies of county judge and jailer's recorded oaths inasmuch as neither KRS 62.010 nor Section 228 of the Kentucky Constitution require that these oaths be recorded).

Finally, and with respect to Mr. LaBelle's argument that the $10.00 charge which the circuit court clerk's office assessed for a copy of the taped transcript of the May 4 proceedings is a revenue raising device, we note that the circuit court clerks are bound by the fees and costs provisions of The Kentucky Circuit Court Clerks' Manual and not the reasonable fee provision of the Open Records Act, except to the extent that the Act and the clerk's fee provisions are not in conflict. Hobbs v. Commonwealth of Kentucky, No. 94- CA-002022-MR, unpublished op. (Ky. App. Dec. 8, 1995). If Mr. LaBelle wishes to challenge this charge as an unreasonable one, he should initiate his challenge in the courts.

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

aps/856

Distributed to:

Sara Boswell Dent

Administrative Office of the Courts

100 Millcreek Park

Frankfort KY 40601-9230

George Flynn, Clerk

Pulaski Circuit Court

P. O. Box 664

Somerset KY 42501

Daniel J. LaBelle

South Central Kentucky

Civil Rights Group

P. O. Box 911

Edmonton KY 42129