DEPARTMENT OF REVENUE, FINANCE AND ADMINISTRATION CABINET, COMMONWEALTH OF KENTUCKY V. 229. ZURICH AMERICAN INSURANCE COMPANY V. JOURNEY OPERATING, LLC, ET AL.
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2008-SC-000468-DG
2009-SC-000543-DG
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DEPARTMENT OF REVENUE,
FINANCE AND ADMINISTRATION
CABINET, COMMONWEALTH OF
KENTUCKY, ET AL.
V.
aAag-ja a_a - lm
s
APPELLANTS/CROSS-APPELANTS
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2007-CA-000089-MR
FRANKLIN CIRCUIT COURT NO . 06-CI-00381
MITZI D. WYRICK
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
The appeal in this case deals with interpretation of KRS 61 .878(1), the
"civil litigation limitation" of the Open Records Law. We hold that a request for
open records should be evaluated independently of whether the requester is a
party or potential party to litigation . Therefore, we agree with the Court of
Appeals that the circuit court erred in its application of the civil litigation
limitation, and remand for reconsideration .
Appellee/Cross-Appellant Mitzi Wyrick, an attorney representing Gannett
Satellite Information Network, Inc . before the Kentucky Board of Tax Appeals
(Board) regarding a tax refund claim, made a discovery request of
Appellant/ Cross-Appellee the Department of revenue (R(,vct-iu(,,) .] The Board
sustained Revenue's objections to the request. Wyrick then requested nine
categories of documents from Revenue, most of which were the same
documents requested through discovery, under the Kentucky Open Records
Law .2 Relying on IRS 61 .878(l),
evenue denied most of Wyrick's open
records requests on grounds that the documents requested were materials
pertaining to civil litigation beyond that allowed in. the pretrial discovery in
litigation between the same parties.
A month after the first open records request, Wyrick made a second
request, this time for "all documents produced by the Revenue Cabinet in the
Johnson Controls litigation in the Franklin. Circuit Court, Civil Action No . 00
CI-00661 ." The second request was denied for reasons other than the civil
litigation limitation .
Pursuant to KRS 61 .880, Wyrick sought review by the Attorney General
of Revenue's denial of both requests . The Attorney General opined that four of
the nine categories of documents from the first request were subject to open
records disclosure, as well as those documents from the second request.
Revenue appealed the Attorney General's determination to the Franklin Circuit
Court. In its appeal, Revenue asserted that Wyrick's request for review by the
Attorney General was untimely, that inspection was prohibited as beyond
pretrial discovery pursuant to KRS 61 .878(l), and that each of the categories
Gannett Satellite Information Network, Inc. v. Department of Revenue, KBTA No . K-04R-03 .
2 KRS 61 .870 et seq.
I
for which the Attorney Gencral authorized inspection was barred from
inspection by a listed exclusion in KRS 61 .878(l)(a)-(
The circuit court ruled in favor of Revenue, finding that the four
categories of docurae its were excluded fro
disclosure by the civil litigation
limitation of KRS 61 .878(l) . The circuit court did not make a determinatio as
to whether the documents were excluded from the ipplication of the Open
Records Law under one of the fourteen specific exception
rovided by KRS
61 .878(1)(a)-(n) . The court also did not address Wyrick's second request, nor
attorney fees, but did make the judgment as to the four categories of
documents final and appealable under CR 54 .02(l) .
On appeal, the Court of Appeals, after holding that Wyrick's request for
review by the Attorney General was timely, addressed only the four categories
of documents at issue from the first request. In addressing the merits, the
Court of Appeals reversed and remanded to the circuit court, holding that the
circuit court's first inquiry should have been whether the requested documents
fell into one of the fourteen listed open records exclusions of IRS 61 .878(l)(a)(n), without regard to whether the requester was a party or potential party to
litigation. Thereafter, this Court granted discretionary review.
The first issue we must address is a procedural one : the timeliness of
Wyrick's request for review by the Attorney General. Revenue responded to
Wyrick's first request on October 18, 2005 . Wyrick's request for review was
filed with the Attorney General on November 21, 2005. The Open Records Law
provides that an agency's response to a request "shall constitute final agency
action ."3 The Open Records Law also provides for a. request for review by the
Attorney GencraP or for an appeal
the circuit court,
ugh there is no
timeframe given for the i itial review or appeal . 6 Revenue contends that, in
such a case, the thirty-day deadline of KRS Chapter 1313 (governing appeals of
administrative decisions) should apply . 7
We disagree . We do not believe U was a I
islative oversight in not
providing a deadline for requesting review by the Attorney General or initially
appealing to the circuit court. An open records request is a on) se request by
"any person,"8 the basic policy of the Open Records Law being that "free Lind
open examination. of public records is in the public interest[.]" 9 We opine that
the omission of a deadline for a. "complaining" party to forward the request and
the denial to the Attorney General is intentional (although a reviewing court
could require that the request be filed within a reasonable time under the
circumstances of a- case) . Therefore, we agree with the Court of Appeals that
Wyrick's appeal to the Attorney General was timely.
I KRS 61 .880(1) .
4 KRS 61 .880(2) &, (5) .
5 KRS 61 .882 .
6 However, a party who requests review by the Attorney General has thirty days from
the day that the Attorney General renders his decision to appeal that decision to the
circuit court . KRS 61 .880(5)(a) .
3
7
8
9
KRS 13B.140(1).
KRS 61 .872(l) .
KRS 61 .871 ; see also Medley v. Bd. ofEduc. of Shelby County, 168 S .W.3d 398, 402
(Ky . App . 2004) .
With respect to the merits of Revenue's -appeal, the Open Records Law
begins with the general statement that
"faIll
public records shall be open ft)r
inspection by any person, except as otherwise provided . . . . "M KRS 61 .878(l)
establishes exceptions to this general
17U](-, :
The following public records are excluded from. the
application of JKRS 61 .870 to & .881 and shall be
subject to inspection only upon order of a court of
competent jurisdiction, except that no court shall
authorize the inspection by any party of any
materials pertaining to civil litigation beyond that
which is provided by the Rules of Civil Procedure
governing pretrial discovery:
(emphasis added) . KRS 61 .878(l)(a)-(n) then list the fourteen categories of
records excluded from disclosure .
The emphasized section of KRS 61 .878(l) is commonly referred to as the
"civil litigation limitation," and it is this wording in. the statute we are called
upon to interpret. "In analyzing the Open Records Act . . . , we are guided by
the principle that `under general rules of statutory construction, we may not
interpret a statute at variance with its stated language.'" 12 "[O]ur duty is to
ascertain and give effect to the intent of the General Assembly . We are not at
10 KRS 61 .872(l) .
KRS 61 .871 requires these exceptions to be "strictly construed," and KRS 61 .882(3)
places the burden of proof on the public agency opposing disclosure . See Medley,
168 S .W.3d at 402 .
12 Hoy v. Kentucky Indus . Revitalization Auth., 907 &50d 766, 768 (E,. 1995)
(quoting Layne v. Ahwberg, 841 S.W .2d 181, 183 (Ky. 1992)) .
liberty to add or subtract from [lie legislative ewictinent nor discover rricanijig
not reasonably ascertainable (fir(.
t1-l(,'
hIIIgLIagC
used ."",
The circuit court concluded thal, b(,-(-,,aLl-,,,e Wyrick was a party who had
made a claim against the Commonwc,,,flth, ,,uid I)ecause the documents
requested by, Wyrich were not discoverabIC under the ales of' Civil Procedure,
the documents could not be obtained d-irough
open records request.
According to the circuit court, this is truc "even if the document is not
`excluded' from the application. of the Open Records Law under one of the 14
subsections of KRS 61 .878(l) ." This interpretation, which Revenue urges us to
adopt, is simply not supported by the clear language of IRS 61 .878(l) .
The Court of Appeals addressed this sanie issue in Kentucky Lottery
Corp. v. Stewart:
[The civil litigation limitation] does not exempt or
exclude all records from the open records disclosure,
in favor of discovery in litigation or anticipated
litigation cases, but limits the release of records
specifically listed in KRS 61 .878(l) to those records
which parties can obtain through a court order. The
gist of this wording is not to terminate a person's right
to use an open records request during litigation, but to
limit a court on an open records request on excluded
records, to those records that could be authorized
through a court order on a request for discovery under
the Rules of Civil Procedure governing pretrial
discovery. Any other interpretation would allow a
nonparty . . . to obtain records not exempted, while a
party before an administrative agency could not obtain
these
same
nonexempted
records
because
administrative agencies are generally not subject to
pretrial discovery. This would bring about an absurd
13
Beckham v. Bd. of Educ. ofJefferson County, 873 S.W.2d 575, 577 (Ky. 1994) (citing
Gateway Construction Co . v . Wallbaum, 356 S .W .2d 247 (Ky . 1962)) .
or unreasonable result- which c,)nnot be fostered by
the courts . The LcgislatUrC clearly intended to grant
any member of the public as much right to access to
information as the next . 1`~
The civil litigation limitation is art explaM'111ioi -i ofa court's authority to order
inspection of documents otherwise exempted from disclosure under KIRS
61 .878QQ)-( ) . It is not an exception to aii ogency's duty to disclose
nonexempted records . And it does not allow a court to prevent disclosure of
records available to the genera-1 public simply because the requesting party is
involved in litigation against a public agency.
In the present case, the circuit court erred in first considering whether
the civil litigation limitation excluded the i-nateria1s before evaluating whether
an open records exception applied. In evaluating an open records request, the
test is as follows . If the requested materials are not specifically excluded from
disclosure (under KRS 61 .878(1)(a)-(n), or other applicable statutes), then the
public agency must provide the materials . If one of the fourteen exemptions 15
applies, then the public agency should deny the request . However, a court of
competent jurisdiction, upon request, can. nevertheless grant disclosure of any
document the agency refused to produce, with one qualification : if the
document "pertain[s] to civil litigation" the court cannot order disclosure
"beyond that which is provided by the Rules of Civil Procedure governing
pretrial discovery ." Even though the proceeding in the case before us is in the
14
15
41 S .W.3d 860, 863 (Ky. App. 2001) (emphasis in original) (footnotes, internal
quotation marks, and internal brackets omitted) .
KRS 61 .878(l)(a)-(n) .
nature of an administrative action rattier t1ian i civil action, tape agency would.
apply the same test and any, agency denial would have to be based on a
statutory or other legal exclusion .
For the foregoing reasons, the judgi-neut of the Court of Appeals is
affirmed, and the case remanded to the Franklin Circuit, Court for further
proceedings consistent with this opinion .
All sitting. All concur.
COUNSEL FOR APPELLANTS/ CROSS-APPELLEES :
Laura Marie Ferguson
Department of Revenue
Office of Legal Services
P.O . Box 423
Frankfort, KY 40602-0423
COUNSEL FOR APPELLEE/ CROSS-APPELLANT:
Deborah H. Patterson
Laurel K. Cornell
Rania Marie Kasha
Sara Christine Veeneman
Wyatt, Tarrant &, Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, KY 40202-2898
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