CITY OF LOUISVILLE v. BRIAN L. CULLINANAnnotate this Case
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
CROSS-APPEAL NO. 1998-CA-001305-MR
CITY OF LOUISVILLE
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 96-CI-002372
BRIAN L. CULLINAN
** ** ** ** **
JOHNSON, MCANULTY, AND MILLER, JUDGES.
MILLER, JUDGE: The City of Louisville (the City) brings this
appeal from an April 22, 1998, summary judgment of the Jefferson
Ky. R. Civ. P. (CR) 56.
Brian L. Cullinan
We affirm on appeal and cross-appeal.
On May 22, 1995, appellee/cross-appellant, Cullinan,
made an open records request to the City pursuant to the Kentucky
Open Records Act, codified in Ky. Rev. Stat. (KRS) 61.870-61.884.
The request was for documentation of legal expenses billed to the
City by its contract attorneys--the firm of Lynch, Cox, Gilman &
Mahan (the law firm).
The request included documentation for
consulting expenses, travel expenses, and miscellaneous costs
relating to expert witnesses hired on the City's behalf in
defense of certain litigation.
The City responded on May 31,
1995, stating that it was not in possession of the items
Given this response, Cullinan directed a similar
request to the law firm.
The law firm responded that it would
not produce the records because (1) the firm was not subject to
the Kentucky Open Records Act and (2) the firm was not granted
permission by its client--the City--to furnish the records in
Pursuant to this response, Cullinan made another
The City responded that the expense documents in
question were not public records.
In addition, the City claimed
it was not “custodian” of same as defined by KRS 61.870(6).
Finally, Cullinan requested that the City reconsider its
The City did not reconsider, contending that the
records were not public and that they had never been custodian
Pursuant to KRS 61.880(2), Cullinan asked the Attorney
General of the Commonwealth of Kentucky to review the City's
On March 21, 1996, the Attorney General rendered a
decision agreeing with the City and stating that the records were
not public and that the custodian law firm was not a “public
agency” within the meaning of KRS 61.870(1).
The net effect was
that the City would not be required to furnish the requested
On April 25, 1996, Cullinan filed an appeal in the
Jefferson Circuit Court pursuant to KRS 61.882.
sought the court to order a production of the records according
to his request and to assess damages in the form of a sanction
together with attorney fees and court costs.
cross-motions for summary judgment.
The parties filed
On April 22, 1998, the
circuit court entered judgment in Cullinan's favor and ordered
production of the records; it denied, however, the request for
sanctions, attorney fees, and costs.
prosecuted the instant appeal.
From this order, the City
Cullinan cross-appealed from a
denial for his prayer for damages, costs, and attorney fees.
On appeal, the City makes but a single argument: the
circuit court committed reversible error by identifying private
records requested by Cullinan as public records.
contends the records are not public records within the purview of
the statute and that the City's right of access to the records
does not make the material “public” within the meaning of the
The facts of this matter are not in dispute.
Wherefore, we are of the opinion that the resolution of the
controversy is a matter of law.
CR 56; Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
review matters of law de novo.
See Louisville Edible Oil
Products, Inc. v. Revenue Cabinet, Commonwealth of Kentucky, Ky.
App., 957 S.W.2d 272 (1997).
We are therefore required to
determine whether the documents requested come within the purview
of KRS 61.870.
That section provides in relevant part as
“Public record” means all books, papers,
maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other
documentation . . . which are prepared,
owned, used, in the possession of or retained
by a public agency. (Emphasis added.)
There is no doubt that the records requested were prepared,
owned, and used at the instance of the City.
The records are
nothing more than the routine billing documents generated by a
law firm in representation of a client.
Here, they are
essentially the City's documents supporting fees to be billed and
paid by the City for legal services rendered.
City would not have been authorized to pay money to the contract
law firm without the benefit of such records.
We are of the opinion that the question as to custody
and possession of the these records was answered by the contract
law firm when it stated, “[w]e have not been granted permission
by our clients to disclose to you the records in question.”
is clear from this response that the law firm was holding the
documents at the instance of and as custodian on the City's
behalf, thus conforming to KRS 61.870(6).
In the end, it is the
nature and purpose of the document, not the place where it is
kept, that determines its status as a public record.
66 Am. Jur.
2d Records and Recording Laws, §3 (1973).
The cross-appeal is without merit as the City's denial
was predicated upon an opinion of the Attorney General.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
BRIEFS FOR APPELLANT/CROSSAPPELLEE CITY OF LOUISVILLE:
William C. Stone
Mitchell L. Perry
BRIEF FOR APPELLEE/
Christina R. L. Norris