TO BE PUBLISHED
97-ORD-98
June 18, 1997
In re: Glenn E. Bone/Louisville Civil Service Board
Open Records Decision
The question presented in this appeal is whether the
Louisville Civil Service Board complied with the Open Records Act
in responding to Glenn E. Bone's May 8, 1997, request for copies
of various records relating to recruitment and hiring in the
Louisville Division of Police. For the reasons which follow, we
find that the Board improperly relied on KRS 61.878(1) in
postponing release of the requested records, and Supreme Court
Rule 3.130, Rule 4.2, in refusing to communicate directly with
Mr. Bone on matters pertaining to his open records request.
Mr. Bone is engaged in federal litigation with the City of
Louisville and the Civil Service Board on issues relating to his
eligibility as a police recruit. He is represented in that
litigation by attorney Mark Boylan. The Louisville Civil Service
Board is represented by Mark W. Dobbins. On May 13, 1997, Mr.
Dobbins responded to Mr. Bone's request through his attorney, Mr.
Boylan. Citing 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,"
Mr. Dobbins argued that this provision authorized him to act in
accordance with the Federal Rules of Civil Procedure governing
pretrial discovery, and in particular FRCP 34 (b), requiring
written responses to requests for production to be served within
thirty days of service of the request rather than the three
business days required by the Open Records Act. Since the records
requested by Mr. Bone "may be relevant to" the pending
federal litigation, Mr. Dobbins indicated that his letter could
be characterized as a request for production of documents.
Therefore, Mr. Dobbins asserted, the Board would respond within
thirty days.
With respect to his refusal to communicate directly with Mr.
Bone on his open records request, Mr. Dobbins stated that because
of the pending litigation, he was obligated to respond to Mr.
Boylan rather than Mr. Bone. In support, he cited Supreme Court
Rule 3.130, Rule 4.2, "which requires a lawyer to
communicate with the lawyer of another party rather than with the
party directly unless that party's lawyer has consented to the
direct communication with the party." Further, he noted,
based on the Kentucky Supreme Court's decisions in Shoneys,
Inc. v Lewis, Ky., 875 S.W.2d 514 (1994) and K-Mart
Corporation v Helton, Ky., 894 S.W.2d 630 (1995) Mr. Bone is
prohibited from directly contacting supervising employees of the
Louisville Civil Service Board for purposes of filing open
records requests since the Board is a party to the civil
litigation which he initiated.
On May 27, 1996, the Board released the requested records to
Mr. Boylan, requesting that he make his client aware that the
records had been produced. It is our opinion that the records
should have been sent to Mr. Bone directly and within three
business days of receipt of his request "unless a detailed
explanation of the cause [was] given for further delay and the
place, time, and earliest date on which the public record [would]
be available for inspection." KRS 61.872(5).
We begin by noting that KRS 61.878(1) did not authorize the
Board, or its attorney, to "act in accordance with FRCP
34(b)" and thus ignore the three day statutory deadline for
agency response codified at KRS 61.872(5) and KRS 61.880(1). As
noted, KRS 61.878(1) provides:
(1) 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 our view, the Board's interpretation of this provision does
not square with its express language. In 95-ORD-18, the Attorney
General analyzed KRS 61.878(1) in considerable depth. At page 4
of that decision, we held that the provision:
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 the 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. . . . It does not . . . alter our view that an
agency's duty under the Act is not suspended in the presence of
litigation.
(Emphasis in original.) The latter view finds ample support in
open records decisions of this office. Thus, in 95-ORD-27 we
rejected the argument that an open records request was improper,
and could be denied, "because it represent[ed] an attempt to
use the Open Records Act as a substitute for discovery."
95-ORD-27, p. 8. Continuing, we observed:
The presence of litigation . . . does not operate to prevent
inspection of public records, since separate statutory grounds
for inspection have been provided by the General Assembly. At
page 3 of OAG 89-65, we observed:
Inspection of public 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 noted that in making this observation, 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.
Id. See also, 89-53, p. 4. Thus, this office has recognized
the potential pitfalls of using the Open Records Act as a
discovery tool.
Nevertheless, as the Attorney General observed in an early
opinion:
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 record.
OAG 82-169, p. 2.
Id.
We therefore conclude that the Louisville Civil Service Board
improperly relied on KRS 61.878(1) to extend its response time to
thirty days, under FRCP 34 (b), and that it was instead bound to
conform to the procedural requirements of the Open Records Act,
and in particular the requirement that it respond to Mr. Bone's
request within three days. Its failure to do so constitutes a
violation of the Open Records Act.
Turning to the issue of direct communication between the
Board's employees, the Board's attorney Mr. Dobbins, and Mr. Bone
relative to the latter's open records request, we find that
neither the cited Rule of Professional conduct nor the cited
caselaw precludes such communication. Mr. Dobbins relies on
Supreme Court Rule 3.130, Rule 4.2, which 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.
In 97-ORD-71 we held that the fact that the requester was an
attorney representing a party who was engaged in litigation with
the agency which was the subject of his open records request did
not relieve the agency of its duty to respond, or compel the
requester to address his request to the agency's attorney, Rule
4.2 notwithstanding.
Although there are no Kentucky cases on point, this position
finds support in a New York case, Fusco v City of Albany,
134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the
same question, and construing a nearly identical rule of
professional conduct, the New York Supreme Court held that the
contention that the rule "prohibits an attorney for a
litigant suing a governmental body from communicating with
employees of that governmental body for the purpose of examining
public records under the Freedom of Information Law" was
erroneous. Id. at 766. The court noted:
The key language is that permitting an attorney to directly
contact an adverse party when "authorized by law to do
so." The Freedom of Information Law is a law authorizing
such direct contact without the prior consent of the government's
lawyer. Any other construction would thwart the legislative
intent behind FOIL. . . .
Id. Kentucky's Rule of Professional Conduct contains
the same key language. In our view, the logic of Fusco v City
of Albany can be extended to the present appeal. With respect
to Mr. Dobbins's assertion that Mr. Bone is precluded from
direct communication with employees of the Civil Service Board
for purposes of filing an open records request, and the
supporting cases which he cites construing Rule 4.2, we note that
as a non-attorney, he is not bound by the Rules of
Professional Conduct. We therefore find no impediment to direct
communication between employees of the Civil Service Board, the
Board's attorney, and Mr. Bone relative to his open records
requests.
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
#567
Distributed to:
Glenn E. Bone
1032 South 6th Street
Louisville KY 40203
Jeff Prewitt
Director
Louisville Civil Service Board
609 W. Jefferson Street
Louisville KY 40202-2728
Mark W. Dobbins
Tilford, Dobbins, Alexander,
Buckaway & Black
1400 One Riverfront Plaza
Louisville KY 40202
Michael Boylan
Attorney at Law
200 South Fifth Street
Louisville KY 40202