NOT TO BE PUBLISHED
96-ORD-263
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
1337
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.