A SERIES OF COURT RULINGS HAVE SUPPORTED THE ACCESS OF THE PUBLIC TO PUBLIC RECORDS….

KRS 61.871 PERMITS ANY PERSON TO REVIEW ANY PUBLIC RECORD

Taylor v. Barlow, 378 S.W.3d 322 (Ky. App., 2012) September 14, 2012
In January of 2011, Michael Wayne Dunagan, a citizen of Tennessee, executed a Limited Power of Attorney authorizing Chester Taylor (“Taylor”) to act in his name for the purpose of pursuing information pertaining to his 2009 arrest and treatment while in the custody of the Monroe County Sheriff’s Department (“Sheriff”). Seven days after the execution of that document, Taylor filed a written Open Records Request with the Sheriff’s office. Taylor signed the request form, listing himself as the requester and describing himself and as “a lawful representative of Michael Wayne Dunagan.” (“Request to Inspect Public Records” at 1). The Sheriff failed to respond to Taylor’s request and, as a result, Taylor filed an Open Records Appeal with the Attorney General’s Office, pursuant to KRS 61.880. The Sheriff did not respond. The Attorney General’s Office issued its decision in favor of Taylor on March 15, 2011, stating that the Sheriff’s failure to release the requested documents constituted “a clear violation of KRS 61.880(1)” and requiring the Sheriff to remit “copies of any existing records in its custody which are responsive to [Taylor's] request” unless they met an exception under KORA. 11–ORD–038 at 3. The Sheriff did not appeal the Attorney General’s decision, instead deciding to disclose some, but not all, of the documents Taylor originally requested. Pursuant to KRS 61.880(5)(b), the Attorney General’s decision took on the force and effect of law on April 14, 2011. On May 2, 2011, believing he still had not received all documents, and seeking damages for the Sheriff’s lack of compliance with KORA, Taylor filed suit in Monroe Circuit Court.

Considering the plain meaning of KORA’s very inclusive language provided above, the trial court’s reasoning in dismissing Taylor’s suit is fundamentally flawed. In its order dismissing, the trial court relied heavily on the fact that Taylor was not the party whom the requested records concerned; rather he was someone requesting records which pertained to Michael Wayne Dunagan and was doing so on Mr. Dunagan’s behalf. However, KORA’s language does not permit such a factual distinction to inform a court’s ruling on standing. KORA’s provision for standing, as explicitly stated by the General Assembly in KRS 61.871, permits any person to review any public record, unless exempt or otherwise prohibited by law, and allows the person denied review of those records to seek relief with the Attorney General and in circuit court. Neither KORA, nor any other authority limits or amends KRS 61.871′s categorical language of “any person” to mean only those whom the requested records concern; nor does KORA prevent an individual from seeking records at the request or on behalf of another person. To read the plain language of KRS 61.871 and 61.872 any other way is to subvert the express intent of the General Assembly as it is stated in that provision.

Accordingly, Taylor has standing to sue under KORA. It is immaterial that Taylor seeks records pertaining to someone else. As the party requesting records held by a public agency, and as the sole plaintiff in the suit against the Sheriff, Taylor has “a real, direct, present and substantial right” in the disclosure, or at least a response regarding the withholding, of the records which he seeks. See Winn, supra. Taylor is the “any person” envisioned and provided for under KORA. As such, he is exercising his “right to appear and seek relief” as the provisions of KORA allow him to do. See Winn, supra. Therefore, we find that KORA granted Taylor standing to sue for damages to which a person requesting public records may be entitled pursuant to that act. Furthermore, we find that the trial court erred as a matter of law when it dismissed Taylor’s case for lack of standing, as such a result would certainly and “substantially prejudice” his case if not remedied. See Sublett, supra.

We briefly address the court’s finding that Taylor, by bringing a suit regarding records which pertained to another person, was engaged in the unauthorized practice of law. We hold that Taylor was not engaged in such activity and in finding he was, the trial court erred as a matter of law.

Commonwealth v. Lexington H–L Servs., Inc., 382 S.W.3d 875 (Ky. App., 2012) October 19, 2012
In a letter written on June 5, 2009, the Cabinet denied Estep’s request, claiming that the requested records were uniformly exempt from disclosure under various state and federal laws, including the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Open Records Act’s personal privacy exemption (KRS 61.878(1)(a)), the Act’s exemption for records or information prohibited from disclosure by state or federal law (KRS 61.878(1)(k) and ( l )), and other statutes that generally provide for the confidentiality of the Cabinet’s child abuse investigation records (KRS 194A.060, KRS 620.050(5)). The Herald–Leader appealed the Cabinet’s denial to the Attorney General pursuant to KRS 61.880(2), and on September 11, 2009, the Attorney General issued Open Records Decision 09–ORD–149, which determined that the Cabinet’s actions had not violated the Open Records Act.

The Attorney General determined that the Cabinet had properly withheld the requested information pursuant to KRS 61.878(1)( l ). That provision exempts from inspection “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]” The Attorney General found that the exemption applied in this case in light of KRS 194A.060(1), which generally “protect[s] the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet,” and KRS 620.050(5), which limits the individuals to whom a “report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter” may be disclosed. Because Appellees did not fit within the categories of individuals permitted to review the subject records under KRS 620.050(5), the Attorney General concluded that the Cabinet had not acted improperly in declining to disclose those records.

We agree with the circuit court that the Cabinet’s failure to disclose the requested records in this case constituted a “willful” violation of the Open Records Act. Had the Cabinet considered Appellees’ requests on their merits and denied disclosure upon a reasonable basis, perhaps our opinion would be different. However, it is apparent that the Cabinet failed to make particularized analysis and instead relied on an all-encompassing policy of nondisclosure despite the purpose of the Act and despite the acknowledged applicability of KRS 620.050(12)(a) under these circumstances. The circuit court concluded that these denials were made in “bad faith,” and we see no grounds to disagree with that conclusion.

In light of our decision, and per Appellees’ request, we remand this matter to the circuit court for a supplemental award of attorneys’ fees and costs incurred on appeal. Under KRS 61.882(5), upon a showing of a willful withholding, Appellees are entitled to any fees and costs “incurred in connection with the legal action,” which would necessarily include fees and costs incurred in defending the judgment on appeal. Since Appellees have requested a determination on this issue, remand is appropriate. See Moorhead v. Dodd, 265 S.W.3d 201, 205 n. 1 (Ky.2008).

Leave a Comment:

*