September 8, 1997

In re: Dan Delehanty/Campbell County District Court Clerk

This is an appeal from the Campbell County District Court Clerk’s response to Dan Delehanty’s June 28, 1997, request for a copy of the arrest warrant, judgment, and sentence in case number 97-CR-047, as well as any motions filed with the court relating to this case. Mr. Delehanty is an inmate confined at Otter Creek Correctional Center. In a letter dated July 29, 1997, Brenda B. Bixler, deputy clerk, denied Mr. Delehanty’s request, advising him that "court records do not come under the Open Records Act." Ms. Bixler did, however, explain to Mr. Delehanty that his designee could come to the clerk’s office between 8:30 a.m. and 4:00 p.m., Monday through Friday, and obtain copies of these records. Mr. Delehanty challenges the latter statement, noting, "It would seem to me that if these records can be had in person then they should be available through the mail so long as I am willing to pay the copying charges, and the postage needed to mail them." The question presented in this appeal is whether the Campbell County District Court Clerk violated the Open Records Act in responding to Mr. Delehanty’s request. For the reasons which follow, we find that the District Court Clerk is not bound by the provisions of the Open Records Act, and therefore cannot be said to have violated the Act in denying the request.

Our decision is based on KRS 26A.200, KRS 26A.220, and the Kentucky Supreme Court’s decision in Ex parte Farley, Ky., 570 S.W.2d 617 (1978). In Farley, the Supreme Court held that records generated by the courts are not subject to statutory regulation. "Records in the hands of the clerk," the court noted, "are the records of the court." Farley at 624. The court thus held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . some details of the 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. The Attorney General has relied on this language in consistently holding 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. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173.

This position finds support in KRS 26A.200 and KRS 26A.220. KRS 26A.200 provides that all records which are made by or generated for or received 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. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4.

Moreover, KRS 26A.220 provides:

Analyzing the relationship between KRS 26A.220 and 26A.200 and the Open Records Act, the court concluded at page 624 of Ex parte Farley:

See also, York v Commonwealth, Ky. App., 815 S.W.2d 415, 417, 418 (1991) (stating that "the only statute which specifically names courts as public agencies [namely, the Open Records Act] has been held not to apply to court records").

The Campbell County District Court has established a policy permitting on-site inspection of its records during regular business hours. Although the Open Records Act also authorizes public records access by receipt of records through the mail at KRS 61.872(3), Mr. Delehanty cannot avail himself of this right since court records are not subject to the Act. Nor can he find relief in the Act. Disputes relating to access to court records must be resolved by 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

#807

Distributed to:

Dan Delehanty #126475

Otter Creek Correctional Center

P. O. Box 500

Wheelwright KY 41669-0500

Brenda B. Bixler

Deputy Clerk

Campbell Circuit Court

Fourth & York Streets

Newport KY 41071

Thomas J. Calme, Clerk

Campbell Circuit Court

Courthouse

Fourth & York Streets

Newport KY 41071