Courier-Journal & Louisville Times Co. v. Curtis

335 S.W.2d 934, 1959 Ky. LEXIS 30

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 22, 1959
• Status: Published

Opinions

BIRD, Judge.

The petitioner, Courier-Journal and Louisville Times Company, is the publisher of two daily newspapers in the City of Louisville.

The respondent, L. R. Curtis, is a judge of the Jefferson Circuit Court and the respondent, James Yoder, is a stenographic reporter for that court.

William Floyd Owen was twice charged with murder in the Jefferson Circuit Court. He was tried and convicted before Judge Curtis on the trial of one case and given the death penalty. He filed a- motion for new trial. This motion and the other murder charge were pending before Judge Curtis. One or the other of the cases was called. Owen expressed his desire to make a statement privately to Judge Curtis in chambers and asked that members of the press be excluded. Members of the press, including petitioner’s representatives, were directed to withdraw. Upon their withdrawal Owen made his statement to Judge Curtis. The court reporter took the statement in shorthand in the presence of counsel for the defendant and the Commonwealth.

The petitioner requested that the shorthand notes be transcribed and that it be furnished a copy for the sole purpose of disseminating the news. No other interest is alleged or proven by the petitioner.

The judge and the reporter refused petitioner’s request.

Petitioner contends that the statement of Owen is a public record and that it has a right to inspect it and procure a transcribed copy of it. This action demands that this Court invoke its injunctive processes to compel the judge and reporter to comply with its request.

For the purpose of this decision we find it unnecessary to determine whether the Owen statement is or is not a public record. If the Owen statement is a public record the paramount questions are these: (1) What right of inspection does the petitioner have? (2) Under what conditions may it enforce its right by injunctive process ?

The petitioner ■ has the same right as any other member of the public. Constitutional provisions concerning freedom of the press are not involved in this action. The press has no greater right to the information sought than any other member of the public. In Riley v. Lee, 88 Ky. 603, 11 S.W. 713, 714, we said as follows:

“ * * * By the provisions of the United States and the state constitutions guarantying the ‘freedom of the press’ it was simply intended to secure to the conductors of the press the same rights and immunities that are enjoyed by the public at large.* * * ”

What then is the right of a member of the public to inspect a public record and under what conditions may he enforce his right by mandamus?

•In the absence of constitutional or statutory authority for the inspection of public records we must look to the common law.

The common law rule is concisely stated in 45 American Jurisprudence, pages 427-428 as follows:

“ * * * Every person is entitled to the inspection, either personally or by his agent, of public records, including legislative, executive, and judicial records, provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. This rule, it is said, is not so much a denial of the right of every citizen to inspect the public records and documents as a declaration of the interest which a private individual must have to avail himself of the extraordinary writ of mandamus to enforce his right. In theory the right is absolute, yet in practice it is so limited by the remedy necessary for its enforcement that it can be denominated only a ‘qualified right.’ The existence of a suit is not, however, a sine qua non for the exercise of the right.”

We recognized and adopted this rule in the case of Fayette County v. Martin, 279 Ky. 387, 130 S.W.2d 838, 843. There we said as follows:

“Appellants cite the following statement of this common law rule, upon which they rely as sustaining and authorizing their right to inspect these franchise tax reports, which is found in 53 C.J. § 40, page 624: ‘At common law a person may inspect public records in which he has an interest or make copies or memoranda thereof, when a necessity for such inspection is shown and the purpose doesn’t seem to be improper, and where the disclosure would not be detrimental to the public interest.’

“This common law rule is further thus stated in 23 R.C.L. § 10 page 160: ‘It is quite generally conceded that there is no common law right in all persons to inspect public documents or records; and that right, if it exists, depends entirely on the statutory grant. But at common law, every person is entitled to the inspection, either personally or by his agent, of public records, including legislative, executive, and judicial records, provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information.’

“Conceding these to be proper statements of the general common law rule invoked by appellants, declaring the public’s right to inspect and examine all public records in which they possessed the required interest, the next question arising and presented for decision is whether or not the appellants’ asserted common law right to inspect these records has been lost or qualified by the express inhibitions and provisions of the statutory enactment, section 4114i — 13, and its later amendments.” (Emphasis ours.)

See also 34 Cyc. 592; State ex rel Holloran v. McGrath, 104 Mont. 490, 67 P.2d 838; North v. Foley, 238 App.Div. 731, 265 N.Y.S. 780.

Kentucky has neither constitutional nor statutory provisions for public inspection of judicial records. The common law rule approved in Fayette County v. Martin will therefore be applied. Without the interest defined in the rule the right of inspection does not exist and without the right of inspection there is no right to mandamus or other mandatory process. Generally the interest required under the rule must be alleged and proven. However, in order to effectuate the notice-giving purpose of various recording acts such interest shall hereafter be presumed as to the following records:

(1) Records of all papers, documents and instruments required or permitted by statute to be recorded, or noted of record, in books provided by public funds for that purpose.

(2) All financial records required by statute to be kept in books so provided.

The presumption shall govern where papers, documents and instruments are required or permitted by statute to be recorded in such books and have been lodged for that purpose but unrecorded.

It is apparent that the common law right to inspect public records is far from absolute. Even in cases where the proper interest is shown or presumed the right to inspect may be denied where the disclosure would be detrimental to the public interest, and the right may always be reasonably regulated by the custodian so that such inspection will not interfere with the proper conduct of his office or the proper administration of the affairs of the agency served by him.

The petitioner neither alleges nor proves the interest required, and the matter involved is not such paper, document or instrument as would be governed by the presumption stated. Having failed to establish a right to the relief sought the petition is dismissed.

STEWART and MOREMEN, JJ., dissenting.