RENDERED: SEPTEMBER 26, 2019 TO BE PUBLISHED
2019-SC-000156-MR [
BECKY HARILSON, IN HER OFFICIAL APPELLANTS CAPACITY AS ACTING CO-DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION AND DAVID FLOYD, IN HIS OFFICIAL CAPACITY AS ACTING CO DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2018-CA-001749-OA FRANKLIN CIRCUIT COURT NO. 18-CI-00512
HON. PHILLIP J. SHEPHERD, JUDGE, APPELLEE FRANKLIN CIRCUIT COURT
AND
LEXINGTON H-L SERVICES, INC., D/B/A LEXINGTON HERALD-LEADER REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Appellants Becky Harilson and David Floyd, in their official capacities as
Acting Co-Directors of the Kentucky Legislative Research Commission (LRC),1
1 The LRC is an independent agency in the legislative branch of state government, composed of sixteen members of the leadership in the Kentucky Senate and House of Representatives. Kentucky Revised Statute (KRS) 7.090(1),(2). David Byerman was LRC’s Director when this action started. Byerman filed a motion to dismiss. Becky Harilson and David Floyd became Acting Co-Directors prior to the circuit court’s November 2018 denial of Byerman’s motion. seek a writ of prohibition preventing the Franklin Circuit Court from
adjudicating an action filed by Lex H-L Services, Inc., d/b/a/ Lexington
Herald-Leader (the Herald-Leader). In the underlying action, the Herald-Leader
sought judicial review of LRC’s determination that certain records requested by
the Herald-Leader are not subject to disclosure under Kentucky’s Open
Records Act (ORA or Act). LRC contends that the General Assembly has not
granted the circuit court subject-matter jurisdiction to hear the merits of the
Herald-Leader’s claims, and furthermore the circuit court’s exercise of
jurisdiction violates the separation of powers doctrine. The Court of Appeals
concluded the Franklin Circuit Court has jurisdiction in this matter and denied
the writ. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following up on a news lead that an LRC employee had filed a complaint
against Kentucky Representative Jim Stewart III alleging sexual harassment, a
Herald-Leader reporter filed an open records request with then LRC Director
David Byerman. The request, dated March 9, 2018, was for 1) records of a
complaint filed against Stewart on or around February 6, 2015; 2) records of
meetings held with Stewart on or around February 9, 2015; and 3) a copy of
any agreement that said Stewart was not to have any contact with an LRC
staffer. LRC’s General Counsel responded to the request on March 14, 2018,
stating that if records relating to the request were to exist, they were exempt
2 from disclosure under KRS 61.878(l)(a), (h), (i), and (j);2 Section 43 of the
Kentucky Constitution; and attorney-client privilege and attorney work product
doctrine.
On March 26, 2018, the Herald-Leader sent a letter asking LRC to
reconsider the prior response, specifically noting that records redacting the
LRC staffer’s identifying information pursuant to KRS 61.878(l)(a)’s personal
privacy exemption would be accepted. LRC did not respond to this letter. On
April 12, 2018, the Herald-Leader made its request under KRS 7.119(3) for LRC
to review Director Byerman’s denial of the Herald-Leader’s request for
documents. On May 14, 2018, LRC issued a decision affirming the Director’s
denial of the requested records.3 On the same day, the Herald-Leader filed its
complaint in Franklin Circuit Court challenging the Director’s denial. After
receiving LRC’s decision, the Herald-Leader filed its amended complaint
seeking review of that decision.
Director Byerman moved the circuit court to dismiss the action for lack
of subject-matter jurisdiction. After that court denied the motion, LRC
petitioned the Court of Appeals for a writ prohibiting the circuit court from
2 LRC’s response summarized its reasons for denying the requested records under KRS 61.878(l)(a), (h), (i), and (j) as they “would involve records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, and/or the records would constitute preliminary drafts, notes, or correspondence with private individuals, and/or preliminary memoranda, and/or the records would be involved in administrative actions.”
3 LRC also cited Section 39 of the Kentucky Constitution as further grounds for denying the request.
3 proceeding without the requisite subject-matter jurisdiction. The Court of
Appeals denied the petition, and this appeal followed.4 Kentucky Rule of Civil
Procedure (CR) 76.36(7).
ANALYSIS
A writ is an extraordinary remedy, cautiously and conservatively granted.
Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). A writ of prohibition may
issue when a lower court is acting on matters not within its subject-matter
jurisdiction. Goldstein v. Feeley, 299 S.W.3d 549, 551-52 (Ky. 2009). “One
seeking a writ when the lower court is acting ‘outside of its jurisdiction’ (the so-
called first class of writ cases) need not establish the lack of an adequate
alternative remedy or the suffering of great injustice and irreparable injury.
Those preconditions apply only [in the second class of writ] when a lower court
acts ‘erroneously but within its jurisdiction.”* Id. at 552. “The court has
subject matter jurisdiction when the ‘kind of case’ identified in the pleadings is
one which the court has been empowered, by statute or constitutional
provision, to adjudicate.” Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012)
(citation omitted).
The lower court’s grant or denial of a writ of prohibition is generally
reviewed for an abuse of discretion. Southern Fin. Life Ins. Co. v. Combs, 413
S.W.3d 921, 926 (Ky. 2013) (citation omitted). However, when a question of
4 LRC presented to the circuit court two other reasons this action should be dismissed — defective service of process and legislative immunity. These issues are not before this Court. As to the legislative immunity claim, LRC filed a separate appeal from the circuit court’s order denying its motion to dismiss.
4 law is involved, we review that question de novo. Id.', Grange Mut. Ins. Co. v.
Tru.de, 151 S.W.3d 803, 810 (Ky. 2004) (“De novo review will occur most often
under the first class of writ cases, i.e., where the lower court is alleged to be
acting outside its jurisdiction, because jurisdiction is generally only a question
of law.”).
LRC presents two arguments. First, it contends that the circuit court
lacks subject-matter jurisdiction because the General Assembly has not
bestowed such jurisdiction under KRS 7.119(3). Second, it insists that the
courts generally lack jurisdiction based on the separation of powers doctrine.
The Court of Appeals, addressing only the first argument, denied the writ
because it concluded the circuit court properly exercised subject-matter
jurisdiction under the relevant statutes. We begin by considering the statutory
scheme.5
I. Franklin Circuit Court Has Subject-Matter Jurisdiction Under KRS 7.119
In Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2
(Ky. 1978), this Court stated:
There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.
5 LRC also presents the argument that KRS 7.119 is a set of waivable procedural rules. Because this argument was not presented to the Court of Appeals, we decline to address it on appeal. See Henderson v. Commonwealth, 438 S.W.3d 335, 343 (Ky. 2014).
5 Relying on Flood, LRC claims that the plain language of KRS 7.119 does not
grant the circuit court jurisdiction to hear the Herald-Leader’s claims. In
short, LRC maintains that judicial review of open records requests addressed to
the LRC Director is authorized only if LRC fails to act on an appeal from the
Director’s decision. In LRC’s view, if it acts, either affirming or reversing its
Director, the matter is closed, with no resort to the courts available.
Turning to the statute, KRS 7.119(3) provides for the inspection of
legislative records by the public. It states in full:
Requests for records or other documents in the custody of the Legislative Research Commission or the General Assembly shall be directed to the director of the Legislative Research Commission. Except for KRS 61.880(3),I6] provisions of the Open Records Act, KRS 61.870 to 61.884,[7] shall apply to a request for
6 KRS 61.880(3) states:
Each agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding the enforcement of KRS 61.870 to 61.884. The Attorney General shall not, however, be named as a party in any Circuit Court actions regarding the enforcement of KRS 61.870 to 61.884, nor shall he have any duty to defend his decision in Circuit Court or any subsequent proceedings.
7 The twelve statutes within the Act and their titles are 1) KRS 61.870: Definitions for KRS 61.870 to 61.884; 2) KRS 61.871: Policy of KRS 61.870 to 61.884; Strict Construction of Exceptions of KRS 61.878; 3) KRS 61.8715: Legislative Findings; 4) KRS 61.872: Right to Inspection; Limitation; 5) KRS 61.874: Abstracts, Memoranda, Copies; Agency May Prescribe Fee; Use of Nonexempt Public Records for Commercial Purposes; Online Access; 6) KRS 61.8745: Damages Recoverable by Public Agency for Person’s Misuse of Public Records; 7) KRS 61.8746: Commercial Use of Booking Photographs or Official Inmate Photographs Prohibited; Conditions; Right of Action; Damages; 8) KRS 61.876: Agency to Adopt Rules and Regulations; 9) KRS 61.878: Certain Public Records Exempted from Inspection Except on Order of Court; Restriction of State Employees to Inspect Personnel Files Prohibited; 10) KRS 61.880: Denial of Inspection; Role of Attorney General; 11) KRS 61.882: Jurisdiction of Circuit Court in Action Seeking Right of Inspection; Burden of Proof; Costs; Attorney Fees; and 12) KRS 61.884: Person’s Access to Record Relating to Him.
6 inspection or copies of documents or other items not set forth in subsection (2) of this section,[8] and except that a request for a review under KRS 61.880 of any determination by the director shall be made to the Legislative Research Commission, which shall issue its decision within thirty (30) days. If the Legislative Research Commission does not issue its decision on a review of the director’s determination within thirty (30) days of submission to it of the matter, the director’s determination may be appealed to the Franklin Circuit Court within sixty (60) days of its issuance. For purposes of this subsection, any reference to the Attorney General in KRS 61.880 and 61.882 shall be read as the Legislative Research Commission.
LRC interprets KRS 7.119(3) to mean that the cross-referenced ORA
provisions (KRS 61.870 to 61.884 excepting KRS 61.880(3)) apply to the
mechanics for handling a request for inspection, but not to a request for
review. LRC views the introductory phrase “and except that a request for a
review under KRS 61.880 of any determination by the director shall be made to
the Legislative Research Commission,” as replacing the entirety of KRS 61.880
and providing a more specific review process applicable to legislative branch
records requests. The process it advocates limits review of the LRC Director’s
decision to the LRC itself. LRC further contends that KRS 7.119(3)’s plain
language limits an appeal to the circuit court to only those cases where LRC
8 KRS 7.119(2) states:
As used in subsection (1) of this section, “records” includes bills and amendments introduced in the Senate or House of Representatives, Senate and House Journals, Acts of the General Assembly, roll call votes, final reports of committees, Kentucky Administrative Regulations, documents showing salary and expenses paid to members of the General Assembly and all employees of the legislative branch, contracts, receipts and work orders for repairs or renovations to legislative offices or facilities, items cataloged in the legislative library, the Legislative Record, and informational and educational materials offered by the public information office, including legislative videotapes and photographs, calendars, and meeting notices.
7 fails to act within thirty (30) days on a matter submitted for review. Because
LRC’s decision affirming the Director’s denial was issued within thirty days of
the Herald-Leader’s request for its review, LRC insists its decision is not
subject to review in the circuit court.
The Herald-Leader counters that if the General Assembly intended to
incorporate the ORA into KRS 7.119(3) only as to requests for records, it would
not have incorporated KRS 61.880(1), (2), (4), and (5) — all provisions for
enforcing a person’s right to inspect records — or KRS 61.882, which expressly
grants circuit court jurisdiction over ORA disputes. According to LRC,
however, the General Assembly’s use of the ORA statutory range, minus one
exception, is a shorthand method for incorporation of the contextually relevant
portions of the ORA.
Rules of statutory construction are used to give effect to the intent of the
General Assembly. Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010)
(“Discerning and effectuating the legislative intent is the first and cardinal rule
of statutory construction.”); KRS 446.080(1) (“All statutes of this state shall be
liberally construed with a view to promote their objects and carry out the intent
of the legislature ....”). That intent is derived from the plain reading of the
statute’s language unless the language is ambiguous. Commonwealth v.
Plowman, 86 S.W.3d 47, 49 (Ky. 2002). Furthermore, “[t]he statute must be
read as a whole and in context with other parts of the law. All parts of the
statute must be given equal effect so that no part of the statute will become
8 meaningless or ineffectual.” Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d
87, 92 (Ky. 2005).
Applying these fundamental statutory construction principles, we find as
a matter of law that the Franklin Circuit Court has subject-matter jurisdiction
to review the LRC’s open records request decision. With KRS 7.119(3)’s
virtually wholesale incorporation of the ORA statutes, we find it beneficial to
briefly examine the purpose of the Open Records Act and the review process
prescribed when a public agency denies an ORA request before turning to the
specifics of KRS 7.119(3).
In 1992, the General Assembly declared the policy of the Open Records
Act relating to public agencies generally, KRS 61.870 to 61.884, “is that free
and open examination of public records is in the public interest and the
exceptions provided for by KRS 61.878 or otherwise provided by law shall be
strictly construed, even though such examination may cause inconvenience or
embarrassment to public officials or others.” KRS 61.871.
KRS 61.880 and KRS 61.882 are the two statutes within the Open
Records Act which detail how enforcement of the Act shall proceed. KRS
61.880(2)(a) sets forth the procedure by which a complaining party may
request the Attorney General to review an agency’s denial of an individual’s
records request, and unless unusual circumstances as defined in KRS
61.880(2)(b) are present, the twenty (20) day time frame by which the Attorney
General must issue a written decision. Pursuant to KRS 61.880(5)(a), a “party
shall have thirty (30) days from the day that the Attorney General renders his
9 decision to appeal the decision.” KRS 61.880(5)(a) also states that an “appeal
within the thirty (30) day time limit shall be treated as if it were an action
brought under KRS 61.882.” KRS 61.882(1) confers jurisdiction for
enforcement of KRS 61.870 to 61.884 upon “[t]he Circuit Court of the county
where the public agency has its principal place of business or the Circuit Court
of the county where the public record is maintained.” Under this statute, a
person alleging an ORA violation can go immediately to court without first
seeking review by the Attorney General. KRS 61.882(2).
Enacted in 2003, KRS 7.119(3) details the manner in which a person
may inspect records in the custody of the LRC or the General Assembly. We
construe the statute by considering the plain meaning of each sentence in
relation to the whole section.
The second sentence of KRS 7.119(3) states:
Except for KRS 61.880(3), provisions of the Open Records Act, KRS 61.870 to 61.884, shall apply to a request for inspection or copies of documents or other items not set forth in subsection (2) of this section, and except that a request for a review under KRS 61.880 of any determination by the director shall be made to the Legislative Research Commission, which shall issue its decision within thirty (30) days.
Significantly, KRS 7.119(3) expressly provides that all twelve of the ORA
statutes, except a specific subsection of the enforcement statute — KRS
61.880(3) — shall apply to a request for inspection or copies of legislative
records. In accordance with KRS 7.119(3) designating LRC, rather than the
Attorney General, as the reviewing body for the LRC Director’s denial of a
records request, the General Assembly removed what would have been KRS
10 61.880(3)’s incongruent requirement that “[e]ach agency shall notify the
Attorney General [(even though he shall not be named as a party in, or have a
duty to defend his decisions, in any ORA enforcement actions in circuit court)]
of any actions filed against that agency in Circuit Court regarding the
enforcement of KRS 61.870 to 61.884.” Since LRC steps into the Attorney
General’s shoes for purposes of reviewing requests for legislative documents,
eliminating KRS 61.880(3) is logical.
Unlike the KRS 61.880(3) exception, however, no plain language in KRS
7.119(3) excepts any other ORA statutory section in its entirety. KRS 7.119(3)
does provide two differences with a request for review under KRS 61.880 by
stating that “except that a request for a review under KRS 61.880 of any
determination by the director shall be made to the Legislative Research
Commission, which shall issue its decision within thirty (30) days.” As noted
supra, KRS 61.880(2)(a) allows the Attorney General to review an agency’s
denial of records and to render a decision within twenty (20) days, excepting
Saturdays, Sundays and legal holidays. In contrast, KRS 7.119(3) states that a
request for a review of any determination by the LRC Director shall be made to
the LRC and provides that the LRC shall issue its decision within thirty (30)
days. These differences between KRS 61.880(2)(a) and KRS 7.119(3) do not
negate the right to judicial review under KRS 61.880(5)(a) and KRS 61.882(1),
provisions expressly incorporated into KRS 7.119(3).
KRS 7.119(3) next states:
If the Legislative Research Commission does not issue its decision on a review of the director’s determination within thirty (30) days of 11 submission to it of the matter, the director’s determination may be appealed to the Franklin Circuit Court within sixty (60) days of its issuance.
This sentence provides instruction for handling situations when
the LRC does not issue a timely decision after receiving a request to
review the Director’s determination. Again, it does not except the right to
appeal a denial to the circuit court as provided in KRS 61.880 and KRS
61.882, statutes expressly incorporated into the legislative open records
process, with the sole exception of KRS 61.880(3). Furthermore, KRS
7.119(3) specifically references and provides further direction for
application of these two statutes in the next and final sentence.
KRS 7.119(3)’s last sentence is:
For purposes of this subsection, any reference to the Attorney General in KRS 61.880 and 61.882 shall be read as the Legislative Research Commission.
KRS 61.880(2)(a), (5)(a), and (5)(b) provide text relevant to the review
process at issue here. Following KRS 7.119(3)’s directive to substitute any
reference to the “Attorney General” within KRS 61.880 with the “Legislative
Research Commission,” these provisions read as follows:
If a complaining party wishes the [Legislative Research Commission] to review a public agency’s denial of a request to inspect a public record, the complaining party shall forward to the [Legislative Research Commission] a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The [Legislative Research Commission] shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and
12 legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.9
KRS 61.880(2)(a).
A party shall have thirty (30) days from the day that the [Legislative Research Commission] renders [its] decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882.
KRS 61.880(5)(a).
If an appeal is not filed within the thirty (30) day time limit, the [Legislative Research Commission’s] decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
KRS 61.880(5)(b).
As noted supra, KRS 61.882 is the statute which provides the circuit
court with jurisdiction to resolve ORA inspection disputes. KRS 61.882(1).
Within this statute, the only reference to the Attorney General is within
subsection (3). Making the substitutions directed by KRS 7.119(3), it reads:
In an appeal of [the Legislative Research Commission’s] decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo. In an original action or an appeal of [the Legislative Research Commission’s] decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. The court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
KRS 61.882(3).10
9 As stated in KRS 7.119(3), the Legislative Research Commission has thirty (30) days to issue its decision. 10 KRS 61.882’s other subsections state in full:
13 In summary, the plain language of KRS 7.119(3) expressly incorporates
all of the Open Records Act statutes except KRS 61.880(3); provides that the
LRC (rather than the Attorney General) is the reviewer of its Director’s
determination and allows the LRC thirty (30) days to issue its decision (in
contrast to the twenty (20) day limit imposed upon the Attorney General); and
provides that for purposes of KRS 61.880 and 61.882, the two ORA
enforcement statutes, any reference to the Attorney General must be read as a
reference to the Legislative Research Commission. After fully incorporating
into KRS 7.119(3) eleven ORA statutes in their entirety and all but subsection
(3) of KRS 61.880, without explicit exceptions or directions otherwise provided
(1) The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any person. (2) A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court.
(4) Except as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date. (5) Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney’s fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney’s fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation.
14 by the General Assembly, we cannot find that KRS 7.119(3) supports LRC’s
contention that the incorporated ORA statutes apply only as to the requests for
records and not requests for review. Nor can we conclude that judicial review
of an LRC decision is limited to when the LRC does not issue a decision within
thirty (30) days. Furthermore, our plain language statutory interpretation
rules do not allow a finding that the General Assembly incorporated the entire
ORA statutory range, minus one subsection, in KRS 7.119(3) merely to avoid
stilted drafting, a strategy which would also be noncompliant with the General
Assembly’s charge to enact legislation written in a clear and coherent manner.
See KRS 446.015. Simply put, the incorporation of KRS 61.870 to 61.884
(minus KRS 61.880(3)) has clear meaning, i.e., those statutes “shall apply.”
KRS 7.119(3). Additionally, the last sentence of KRS 7.119(3) plainly means
something and under the LRC’s theory of the review process it would be
rendered meaningless.
When construing a statute, our duty is to effectuate the intent of the
legislature, and that intent is derived from the statute’s language. Plowman,
86 S.W.3d at 49. Since there is no ambiguity in KRS 7.119(3), it must be given
its effect as written. Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky.
1970) (citation omitted). In accordance with our rules of statutory
construction, we conclude that under KRS 7.119(3), the Franklin Circuit Court
15 has subject-matter jurisdiction to adjudicate the underlying case arising from
the Herald-Leader’s legislative records request.11
II. The Trial Court Does Not Lack Jurisdiction Based on the Separation of Powers Doctrine
Kentucky’s Constitution establishes that the legislative, executive, and
judicial branches are separate, each having its own powers, Section 27, and no
branch “shall exercise any power properly belonging to either of the others,
except in the instances . . . expressly directed or permitted,” Section 28. LRC
contends the lower courts’ interpretation of KRS 7.119(3) violates the
separation of powers doctrine and ignores the directly analogous circumstance
in Ex parte Farley, 570 S.W.2d 617 (Ky. 1978), a case in which the judicial
branch declared itself exempt from the entire ORA scheme.
In Farley, a public defender requested to inspect and copy records
being compiled by AOC (Administrative Office of the Courts) pursuant to
KRS 532.075(6)(c),12 id. at 619, 621, records to be used by the Supreme
11 Because KRS 7.119(3)’s language is unambiguous, we need not and do not address LRC’s legislative history argument. Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (citation omitted) (“Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history . . . .”).
12 KRS 532.075(6) states:
The Chief Justice shall assign to an administrative assistant who is an attorney the following duties: (a) To accumulate the records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate. (b) To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
16 Court to determine, upon review, “[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant,” id. at 619. The Farley
Court addressed the work-in-process accumulated by AOC stating:
On its face, the Open Records Law, KRS 61.870-61.884, incl. (Ch. 273, Acts of 1976), appears to apply. Whether its provisions conflict with or are harmonious with KRS 26A.200-26A.220,l13l incl. (Ch. 22, Acts of 1976 Ex.Sess.), we need not decide, because we are firmly of the opinion that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.
Id. at 624.* 13 * * * 17
(c) To compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
13KRS 26A.200 and KRS 26A.220, respectively, provide: (1) All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court. (2) The Supreme Court shall determine which records were generated, made, or received by or for any court.
KRS 26A.200. All public officers, public agencies, or other persons having custody, control, or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
KRS 26A.220.
17 Concentrating on the above-quoted sentence in which the Court states
that its judicial function must not be encroached upon by the function of the
legislative branch, LRC asserts that likewise the legislative branch cannot be
encroached upon by the judicial branch. LRC argues that “‘the custody and
control of the records generated by the [Legislative Branch] in the course of [its]
work are inseparable from the [legislative] function itself, and are not subject to
[judicial] regulation,’ except possibly in the narrow class of cases where the
LRC remains silent on a request for review of a Director’s decision.”
We cannot agree that Farley supports a finding that the circuit court
lacks jurisdiction in matters such as this based on the separation of powers
doctrine. Farley (citing City of St. Matthews v. Voice of St. Matthews, Inc., 519
S.W.2d 811 (Ky. 1974)),14 recognizes that the legislative branch has the
authority to establish policy regarding the disclosure of public records which
fall within its purview. 570 S.W.2d at 625. Furthermore, as pointed out by the
Farley Court, the General Assembly implicitly recognized the Court’s authority
over its own records with the passage of KRS Chapter 26A.200-26A.220, the
Court of Justice records statutes.15 KRS 26A.200 particularly states that the
records generated for the Court of Justice are “the property of the Court of
14 City of St. Matthews, 519 S.W.2d at 814, states: “The extent to which public records should be subject to inspection is a matter of public policy. Ordinarily we look to the General Assembly, as the most direct representatives of the people, to establish public policy in matters such as this . . . .” 15 The Kentucky Open Records Act became effective June 19, 1976. KRS 26A.200-26A.220, addressing Court of Justice records, became effective March 19, 1977.
18 Justice and are subject to the control of the [Kentucky] Supreme Court.” The
Farley Court made clear that “with respect to records that belong to the courts
and are a part of their ongoing work,” consistent with separation of powers
doctrine, the Court itself must articulate the public policy for disclosure of its
records. Id.
[W]ith respect to records that belong to the courts and are a part of their ongoing work, the only conclusion consistent with the constitutional right of control over their own records is that the public policy must be articulated by the courts themselves. We do not believe that this viewpoint represents any actual conflict with the policy intended by the General Assembly itself. KRS 26A.200, which was enacted at a later date than was the Open Records Law, implicitly recognizes it. As a matter of fact, KRS 26A.200 was drafted by AOC.
Id.
Undoubtedly, the legislative branch of government likewise has the
authority to establish the rules and policies pertaining to the public’s
inspection of their legislative records, including the review process when the
disclosure of requested records is denied. Indeed, the General Assembly has
spoken through KRS 7.119, wherein it states (through incorporation of KRS
61.871) that examination of records in the custody of the LRC or the General
Assembly is in the public interest, and establishes the rules and review process
for a records request. Now, a question is raised as to the proper interpretation
of that statute.
“It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. . . . This is of the very essence of
19 judicial duty.” Marbury v. Madison, 5 U.S. 137, 177-78 (1803). “It was long
ago settled that the interpretation of statutes is a proper judicial function . . . .”
Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 217
S.W.2d 815, 822 (Ky. 1948). The writ action before us involves that
fundamental judicial function, interpretation of a controlling statute.
Interpretation of a statute detailing review of a legislative records request is in
no way an encroachment on the legislative function, it is a quintessentially
judicial function.16
Finally, the primary question presented in this action is whether,
pursuant to KRS 7.119(3), the Franklin Circuit Court has subject-matter
jurisdiction over the underlying dispute. We conclude that it does, the
legislature having granted that court jurisdiction to review denial of ORA
requests, including those involving LRC. While LRC expounds upon Section 39
of the Kentucky Constitution, one of its grounds for denying disclosure of the
requested records, as presenting a nonjusticiable political question, that issue
is not properly before the Court in this writ action. In the exercise of its
statutorily-granted jurisdiction, the circuit court will consider LRC’s arguments
that the requested records are exempt from disclosure under the eight grounds
16 LRC compares the General Assembly’s adoption of KRS 7.119 and the potential for Kentucky courts to decide through their opinions whether the legislative branch must disclose records related to a constitutionally authorized investigation into a member of the House of Representatives to this Court’s adoption of an open records policy which prohibits disclosure of records relating to employee complaints, investigations, or decisions. Although LRC appears to argue otherwise, the fact that the General Assembly may have adopted different record disclosure rules than the Court of Justice does not present a separation of powers issue.
20 LRC cited when denying the records to the Herald-Leader, including Section
39.
CONCLUSION
As a matter of law, the Franklin Circuit Court has subject-matter
jurisdiction over the underlying action filed by the Herald-Leader. The Court of
Appeals’ denial of the writ is affirmed.
All sitting. Minton, C.J.; Buckingham, Lambert, VanMeter, and Wright,
JJ., concur. Keller, J., concurs in result only.
COUNSEL FOR APPELLANTS:
Gregory Allen Woosley Legislative Research Commission
COUNSEL FOR REAL PARTY IN INTEREST:
Thomas W. Miller Elizabeth C. Woodford MILLER, GRIFFIN & MARKS, P.S.C.