Saturday, September 12, 2015

Not letting the exceptions swallow the rule

Under Kentucky's open records law, the basic policy "is that free and open examination of public records is in the public interest." As such, the General Assembly has asserted that the exceptions to the rule are to be construed strictly. (See KRS 61.871). 

This policy means that openness is to be the standard, and that reasons for non-disclosure are to be the exceptions to the general rule. This is to be true "even though such examination may cause inconvenience or embarrassment to public officials or others." (See KRS 61.871). However, the exceptions to the broad policy of openness must bend to other interests in a variety of situations. 

Recently, the attorney general's office addressed whether certain records held by a county's circuit court clerk should be subject to the state's open records laws. 

In re Orenthal Mitchell/Jefferson Circuit Court Clerk, 15-ORD-156, Mitchell appealed to the attorney general's office after the Jefferson Circuit Court Clerk was unresponsive to his request for a copy of child support orders, visitation and custody orders, and judgments entered by Jefferson County in reference to him. 

In its opinion, the attorney general's office adopted analysis from one of its previous decisions and found that records in the custody of circuit and district court clerks are properly characterized as court records. As such, the Open Records Act does not apply to those types of records. Further, the opinion noted that the attorney general "has long recognized that neither circuit nor district court clerks are subject to the provisions of the Open Records Act." 

Though public policy favors openness and disclosure of public records, Kentucky law recognizes that not all records must be subject to the strictures of the open records law for a variety of reasons. Here, the attorney general's office stressed that, as it had stated in its previous opinion, "[s]imply stated, disputes relating to access to court records must be resolved by the court." 

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