NOT TO BE PUBLISHED

In re: James Whitehead/Administrative Office of the Courts

This matter comes to the Attorney General as an appeal by James Whitehead in connection with his attempt to secure copies of documents allegedly in the possession of a court reporter for the Green Circuit Court.

In a letter dated June 17, 1997, addressed to Lynn Ballard, Court Reporter for the Green Circuit Court, and designated as a request under the Open Records Act, Mr. Whitehead asked the court reporter for copies of various documents.

Mr. Whitehead's letter of appeal, received by this office on July 3, 1997, stated that he had not received a reply of any kind from the court reporter. He requested that this office grant the relief to which he is entitled.

Upon receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," Sara Boswell Dent, Staff Attorney for the Administrative Office of the Courts, submitted a response. She stated that on the basis of the case of Ex Parte Farley, Ky., 570 SW2d 617 (1978); KRS 26A.200 and KRS 26A.220; and several previously issued opinions and decisions of this office, the records of the court are not subject to the provisions of the Open Records Act. Ms. Dent further said that even if the courts were subject to the Open Records Act, there is no record to copy as no transcription has ever been made a part of the court record relative to the proceedings identified by Mr. Whitehead.

This office has consistently recognized that records of the courts are not governed by the Open Records Act. See York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991) and Ex Parte Farley, Ky., 570 S.W.2d 617 (1978). At page 624 of its opinion in Ex Parte Farley, the court said in part:

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.

Previously issued decisions of this office concluding that records of the courts are not governed by the Open Records Act include 96-ORD-124, 95-ORD-89, 95-ORD-51, and 95-ORD-31, copies of which are enclosed.

KRS 26A.200, relative to court records, provides as follows:

1. All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court.
2. The Supreme Court shall determine which records were generated, made or received by or for any court.

See also KRS 26A.220 pertaining to the Supreme Court's supervision and control of records of the court.

It is, therefore, the decision of the Attorney General that neither the Administrative Office of the Courts nor the court reporter for the Green Circuit Court has violated the Open Records Act as records of the courts are not subject to the terms and provisions of that Act.

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.

1. B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

# 708

Copies of this decision

have been distributed to:

James Whitehead #102667

Eastern Kentucky Correctional Complex

P.O. Box 636 D#1-CL-13

West Liberty KY 41472

Sara Boswell Dent

Staff Attorney

Administrative Office of the Courts

100 Millcreek Park

Frankfort KY 40601-9230

Lynn Ballard

Green Circuit Court Reporter

Courthouse

203 W. Court Street

Greensburg KY 42743