Central Kentucky News-Journal v. George
306 S.W.3d 41
Ky.
2010
Check Treatment

*1 KENTUCKY CENTRAL NEWS-

JOURNAL, Appellant, Doughlas (Judge,

Hon. M. GEORGE

Taylor Court), al., Circuit et

Appellees.

No. 2009-SC-000018-MR.

Supreme Kentucky.

March

42 Moss, Camp- employee of a former

erine time, and, the High School bellsville County Taylor employee of prospective an action brought Moss first High School. of the of Education the Board against Dis- Independent School Campbellsville Adams, Pack, Lee James Ashley Cleek trict, Superintendent, Charles its former Fleischaker, L. Jon Rogers, Jeremy Stuart and the capacity, in official Vaughan, his Louisville, KY, Shohl, LLP, & Dinsmore High Campbellsville Principal former Appellant. for Counsel Chick, School, his official and Greg both KY, Yewell, Owensboro, John Lee David Therein, al- Moss capacities. individual Emery, Stewart, Stephen Charles Frith the victim of sexual that she was leged Stoess, Stewart, Roelandt, Craigmyle & against later filed suit harassment. Moss KY, Crestwood, PLLC, Stewart Emery, Education, Taylor County Board the Gaines, Burch, Logan & Christopher Seaborne, in Gary N. his Superintendent, Frankfort, KY, PLLC, Owsley, Michael A. Principal of the capacity, and the official Jackson, Whayne A. Cravens Regina School, Gaylon Yar- County High Taylor III, Lucas, Priest, Priest & Ows- English, his official and individual berry, in both KY, Green, LLP, ley, Bowling Counsel Therein, alleged that she Moss capacities. Appellees. employment. wrongfully was refused discovery, parties the extensive After by Justice SCOTT. Opinion of Court involving private mediation participated peti- Kentucky News-Journal Central cases, was reached.1 and a settlement both writ Appeals for a tioned the Court of settlement, par- In consideration Doughlas directing Honorable mandamus would remain agreed that its terms ties Taylor George, Judge M. Circuit Thereafter, or- agreed in an confidential. Court, copies to sealed grant dismissal, Taylor County Circuit der involv- confidential George, dismissed Judge, Doughlas Court Education, Taylor County Board of ing the sealed the terms of Complaints, Campbellsville, of Education of Board settlement, and ordered dismissal Ap- employees. certain Court strictly to the confiden- parties to adhere Ken- the writ and Central peals denied agree- in the contained tiality provisions tucky appeals now to this News-Journal ments. right. Ky. Const. as matter 76.86(7)(a). 115; § For reasons that settlements, CR Appellant Following these follow, the Order of we reverse Kentucky requests written filed of Appeals. dis- Act with both school Open Records “copies of records with sought tricts and Background

I. in each the recent settlement” regard to response, both school districts continuing case. appeal arises from the This records, cit- produce Kentucky declined Appellant, efforts of Central Taylor Circuit Court News-Journal, ing the orders of gain access to two confi- the terms of the dis- purporting to seal agreements stemming dential settlement and its order for missal and settlement separate from two lawsuits. Both suits the confiden- strictly adhere to parties Kath- Taylor were filed Circuit Court Taylor Circuit Court. was not ordered or overseen The mediation tiality provisions petition part contained granted and held that ments. Courier-Journal and Louisville Times Co. Peers, (Ky.1988), estab

In accordance with the *3 lished that Appellant, as member of the Act, Appellant Kentucky to the appealed media, news was entitled intervene and Attorney subsequent Open General. In a 07-ORD-110, in Decision, participate hearing on the underlying the Records Attor- opined General the settlement merits of ney its claims.2 Accordingly, the agreements were records for pur- Appeals of Court directed the trial court to of the Act and must be poses disclosed vacate its denying Appellant’s order mo public upon request they quali- the unless intervene, tion to to enter an order allow for or fied exclusion under one more of the intervene, ing it to to address the remain Nevertheless, exceptions. Act’s because relief, of its requested der and to file the Taylor entered an the Circuit Court order agreements into the record. For these sealing agreements directing par- and the reasons, Appeals the Court of concluded to adhere to confidentiality provi- ties their premature would be to order the sions, Attorney the General concluded that court trial to vacate orders sealing its authority and the its was limited issue of agreements directing parties and to the agreements was one to confidentiality adhere to their provisions. be resolved the court. remand, On court the trial entered an Thereafter, Appellant moved to inter- placing order the agreements into the rec- in Taylor vene both actions in the Circuit ord,3 if they asked the parties had further so as to assert its access to Court present evidence to on issue of wheth- addition, settlement In agreements. er the settlement agreements should be Appellant sought to have the trial court disclosed, and offered to take additional agreements, unseal terms of the vacate testimony hearing, par- sworn at a if the regarding confidentiality, its orders and to ties desired. Appellant advised the trial hearings make future related to the court that it had no additional evidence to open press. to the and case court, order, present requested and the court agreed trial consolidat- to rule on the two to rule on Appel- original parties ed cases order the record. The affi- filed reviewing record, lant’s motions. After the settle- objected davits into the but to a camera, agreements in ment trial court further court hearing. complied The trial Appellant’s denied to intervene motion and and addressed the issue of whether the held that not a strong did hold and documents should be unsealed. The court legitimate interest in the terms of the analyzed this Court’s Roman agreements so as to warrant its interven- Noble, Lexington Diocese Catholic tion. (Ky.2002) applicability and order, Open Records Act’s exemp-

Seeking relief from that Appel- tion before that neither petitioned Appeals concluding lant for Appeals writ mandamus. The Court of First Amendment nor order, previously spite 2. Because the trial court had con- of the trial court’s settle- hearing conjunction ducted a on the matter agreements ment were not transmitted with intervene, Appellant's with motion By appeal. record on own Court’s Appeals whether held that to conduct motion, properly supple- the record been has hearing would another on remand be within agreements mented with the for our review. the trial court’s discretion. peti- will if the injury result irreparable to unseal the court required the Act granted. tion is not access. Appellant’s for ments Hoskins, (emphasis 150 S.W.3d at 10 petitioned the Court again Appellant Here, did Appellant’s petition original). writ of mandamus for a Appeals jurisdiction, the trial court’s challenge not trial court vacate would direct errone- that the court but rather claimed open the order ously it access the settlement denied view. any related documents agreement. citing Appeals, this Court’s The Court *4 Maricle, v. S.W.3d 150 Hoskins decision case, Appellant the usual and, petition in a (Ky.2004), denied 1 that it is would have to first demonstrate Appellant that failed to opinion, held brief or adequate remedy by appeal without an acting court was out trial that the show ir great and injustice and that otherwise erroneously. acting or jurisdiction side reparable would without issu injury result Appellant now that It is from this order Ap ance the writ the Court before right pursuant a as matter of appeals of its peals consider the merits would 76.36(7)(b). CR Trude, at 808. claim. 151 S.W.3d See Yet, by virtue of Court’s asks appeal, Appellant On this Court Peers, 128, at “the news media 747 S.W.2d Appeals the Court of reverse Order exception have an to the usual been made instruct trial court and order man standing rules ... seek regarding sealing the of the its orders terms vacate is de prohibition] where access damus [or For the reasons agreements. nied”, circum “represents exigent as it follow, we reverse Order directly to the justifying coming stances Appeals. extraordinary an rem appellate courts for 129; Noble, edy.” 92 Id. at see also Appropriateness II. Writ (“Once representa a S.W.3d at 729 media stated, has often a As this Court a requests tive to intervene and moves “extraordinary is an writ of mandamus may attack an hearing, representative have remedy always and been [the Courts] by ruling petitioning adverse both cautious and conservative in enter Appeals prohibition.”) for a writ of mandamus or taining petitions granting and for (ci 129); Peers, ting 747 S.W.2d Trade, Ins. Grange relief.” Mut. Co. v. (“But Noble, where 92 S.W.3d at 729 cf. 803, (Ky.2004) (quoting 151 808 access, there are denying there no order is Eaton, 799, (Ky. v. 800 Bender grant no exigent justify circumstances to 1961)). Indeed, justify the circumstances Rather, ing party seeking writ. grant a writ limited: ing of such are ... and satisfy writ must the usual ... upon requirements justifying writ show- strict for relief may granted A be a (1) mandamus.”). is must ing proceeding prohibition the lower court or Such case, explained, be Peers because proceed or is about to outside of its of free remedy guarantee there is no First Amendment jurisdiction “[t]he and press to an and the Sixth Amend through application intermedi- dom of the court; (2) in criminal court is ment trial guarantee ate or lower cases, applied erroneously, interpreted act and acting presently or about to as is decisions, the news judicial placed although jurisdiction, within its and have demanding unique position in adequate remedy by ap- there no media in a exists position great injustice proceedings,” or access to court peal otherwise gather that “includes the news see no need to Appellant’s address related Peers, about a civil case.” arguments. S.W.2d at (citing Branzburg Hayes,

127-28 Generally, Kentucky’s Open Rec- 665, U.S. 92 S.Ct. 33 L.Ed.2d 626 Act, ords shall open “[a]ll records be CBS, (1972); Inc. v. Young, 522 F.2d 234 inspection person, except as (6th Cir.1975)). provided otherwise by KRS 61.870 to 61.872(1). 61.884.” KRS Though there Appellate III. Standard of Review are, indeed, statutory several exceptions “procedural Where prerequi delineated by the General Assembly, the satisfied, sites for writ are ‘whether to Act presumes interest the “free grant deny a petition or for a wit is within and open examination of records.”4 ” discretion,’ of Appeals’] [Court “[a]nd 61.882(4). ex- Accordingly, Act’s appellate review of that decision limited ceptions construed,” “shall strictly even to an abuse of discretion inquiry.” Rehm when disclosure would otherwise “cause *5 864, v. Clayton, (Ky.2004) 132 S.W.3d 866 inconvenience or to public embarrassment Shake, (quoting Peterson v. 120 S.W.3d officials or others.” Id. 707, (Keller, J., (Ky.2003) 711 concurring)). Here, beyond question is the that involved, questions Where of pure law are agreements settlement public are records we review the of Appeals’ determi for purposes of the Open Records Act.5 Rehm, e.g. nation de novo. See 132 S.W.3d Appellees contend that agreements the (citing at Kentucky 866 Labor Cabinet v. are, nevertheless, exempted from disclo Graham, 247, 43 (Ky.2001)). S.W.3d 251 by

sure virtue of personal the Act’s privacy Analysis exception. agree We cannot and find con IV. trolling this holding Lexington- Court’s Appellant argues that the of Ap- Fayette County Urban v. Lexington Gov’t peals left uncorrected the trial court’s er- Herald-Leader, (Ky.1997). 941 S.W.2d 469 roneous conclusion that the settlement agreements at issue should Lexington remain under an Herald-Leader involved agree seal. We that agency’s conclude the a denying newspaper local agreements pursuant must be disclosed to to settlement agreements entered into Kentucky’s Open Records Act. Because it agency the and various unidentified indi- is of dispositive appeal, the issues on we inju- viduals resolution of their claimed ("At level, 1994) the public As to nature the of interest in- purpose its basic the of most volved, explained: this Court has right disclosure on the focuses to be citizens' government informed as to what their is do public's "right The to know" under the ing. purpose That is not fostered however premised upon Records Act is the private disclosure of information citi about public's right expect agencies properly to govern zens that is accumulated in various statutory execute their functions. In general, nothing inspection may ment files that reveals little of or about records reveal conduct.”). public agency's whether the an servants are own indeed serving public, policy the and the of disclo- books, public 5. A papers, record “means all provides impetus agency sure for an stead- cards, discs, maps, photographs, pursue tapes, disk- fastly public good. ettes, software, recordings, Kentucky Bd. other Psychologists Examiners or documen- of of Co., regardless physical of tation form or charac- Courier-Journal & Louisville Times 826 324, teristics, used, owned, (Ky.1992); prepared, also which are see Zink v. Commonwealth, Claims, Dept. possession by public agen- Workers' La a of or retained of Cabinet, 61.870(2). bor 902 S.W.2d (Ky.App. cy.” 828-29 right of an balancing the sacrosanct agency Though at 470.

ries. See id. against legitimate of consider- the amount individual chose reveal ation, identity of public not disclose concerns and would underlying of recipients types workings nor into the inquire bar, case Id. Similar to the at injuries. government, we find a settlement confidentiality provi- cited to the agency citizens and private litigation between deny- agreements contained in sions entity legiti- is a matter governmental request. ap- Id. On newspaper’s ing public concern which mate Kentucky’s Open held peal, this Court confidentiality A scrutinize. entitled to public disclosure of required Act is not enti- agreement clause notwithstanding recipients, ... protection tled provisions. confidentiality See id. ments’ 472-73; id. see also at at 471-73. (“[T]he ... statutory provisions specific Lexington concluded Herald-Leader favoring dis policy determination reflect that because the settlement general records over closure funds, expenditure involved the policy encouraging settlement. in the outcome of the public’s interest state, through their elected people “[tjhere was, fortiori, strong: representatives, in the clearest have stated no contention that an could be viable important it is more terms that the final set- agreement represents which *6 type to they have this of informa whereby gov- civil lawsuit a tlement of a it tion than that remain confidential. entity public funds to com- pays ernmental Thus, may that public agency we hold a injury inflicted is not a pensate for statutory requirements not circumvent Indeed, Id. at 471. public record.” keep the of a settle agreeing to terms “even before enactment explained, confidential.”) (quoting agreement ment statute, we held ... Open of the Anchorage Anchorage School District v. ... city ‘the funds is a payment (Alaska 1191, News, Daily 779 P.2d public matter with which the has sub 1989)) (emphasis original). concern, against which little stantial any weight can be accorded to desire of bar, Turning to the case at we back keep to plaintiff that suit secret quite think it clear that the settlement ” money (quot amount he l-eceived.’ Id. agreements presumably records are & ing Courier Journal Louisville Times disclosure, subject regardless to of then- McDonald, (Ky. 524 S.W.2d 633 Co. re- confidentiality provisions. Having 1974)). agreements, appears viewed Moreover, paid out of the proceeds re- were Lexington Herald-Leader Trust, jected agree- Kentucky School Board confidentiality the idea that a Insurance se, impute, per policy, may premiums ment record an insurance superior been, indirectly, privacy with a claim that of the have which had to least Moreover, right money. of access: tax public’s paid with resolved claims between agreements confidentiality clause reached [A] districts, Moss, agents the school and its litigation cannot agreement parties (as personal) capaci- their official well as in and of itself create an inherent ties, any notion that negating thus superior exempt from privacy purely personal agreements concerned statutory mandate for disclosure Records Act.... matters. contained ” Publications, notwithstanding, cy.’ Cape we must still ad Inc. v.

This Univ. of are, Ap- Inc., as agreements Found., whether the dress Louisville 260 S.W.3d found, contend and the trial court pellees (Ky.2008) (citing Kentucky Bd. Ex- under the Act’s exempt from disclosure Psychologists, aminers 826 S.W.2d at exception, KRS personal 327-28). 61.878(l)(a).6 Lexington See Herald- Again having agreements, reviewed the (“[W]e

Leader, recog 941 S.W.2d at 473 we any conclude that contention that their may in some there nize that cases be disclosure would constitute a clearly un- legitimate personal privacy concern for [in personal privacy warranted invasion of is agreements] confidential settlement which Act.”). agreements meritless. The do not would be sufficient under contain exemptions Mindful that the Act’s must be underlying details of the claims construed, 61.882(4),and that strictly KRS they purport to expose resolve that could agency resisting it is the burden of the Moss or per- others to the risk of serious action, to sustain its disclosure sonal embarrassment of humiliation. 61.882(3), has, indeed, this held Rather, merely contain may exempt certain information personal some scant identifiers that could type the Act where “it is the of information easily have Against been redacted.7 which the would have little or about lies, a minimal privacy interest as we have legitimate no interest but which would be discussed, a strong public interest in know- likely personal to cause serious embarrass ing money being put how its tax is to use Lexington ment or humiliation.” Herald- by the agencies. Appellees’ state’s While Leader, 472; 941 S.W.2d at see also Ken claim that all that remains be disclosed tucky Psychologists, Bd. Examiners paid amount of consideration (identities at 324 persons Moss as were an though illegitimate Zink, sexually exempt); victimized held *7 curiosity, bearing we see it as a direct (forms containing indi exactly nexus to how the public agency status, depen viduals’ marital number of public’s money uses the as set- —whether dents, rate, number, wage security social regard tlement amounts or in liability telephone home address and number held premiums. insurance Because KRS exempt). make this determination We 61.878(l)(a) apply did not to the settlement “weighing per interests of the exempt so as them from against public’s sons involved interest public Open disclosure under the disclosure,” asking “whether infor Act, therefore, was, error for the trial nature,” sought personal mation is of a Ap- court to so conclude. The and, so, if “whether the disclosure of peals denying thus abused its discretion in ‘clearly this information would constitute a personal priva- Appellant unwarranted invasion of issuance of writ. 61.878(l)(a), clearly pertinent part, personal

6. KRS reads: unwarranted invasion of privacy ... (1) following public records are ex- application from cluded 61.870 remand, the court redact On should subject inspection to 61.884 and shall be security reference social number as to Moss’ only upon competent order of a court of well as her counsel's tax identification num- jurisdiction ...: addition, (a) page ber. the final attached to containing Public records information agreements (including photocopy personal of a nature where the check) not disclosure thereof would constitute a need be disclosed. sufficient, and settlement should

V. Conclusion upon suitably can be drawn to stand ments reasons, we reverse foregoing For the enforcement is their own as far as future Appeals and of the Court of the Order concern. pro- matter to that court for remand this opinion. with this ceedings consistent SCOTT, J., joins. ABRAMSON, NOBLE,

MINTON, C.J.; VENTERS, JJ.,

SCHRODER, concur. J.,

CUNNINGHAM, concurs SCOTT, J., joins. in which

separate opinion

CUNNINGHAM, J., concurring. majority opinion with the

I concur believe, specifically not although we do HUMMEL, Appellant, Alan today, that the Records law is hold exemptions any- subject to its — invoked— keeping agency

time a record Kentucky, COMMONWEALTH of Of employed, by private parties. even Appellee. course, circuit clerk to which I it is the No. 2008-SC-000801-MR. Here, pub- involves a litigation refer. affected. agency being lic with funds Kentucky. Supreme Court of However, litigation is be- even when 18, 2010. March private parties, once the settlement tween agreement lodged has been with the as public agent

clerk—a becomes —then

any other document so filed. There are

ample protections private parties

KRS 61.878. today

I do not believe our here infringe upon

is intended to broad trial in guarding

discretion of courts might from

against prejudice which arise

public disclosure of certain evidence filed ongoing. while the case

of record

temporary sealing of certain documents precautions may, like in some

and other

cases, necessary to both sides a insure today

fair trial. refers Our here

only to settlement filed at the

conclusion of the case.

Lastly, seems it would behoove in the

private litigants not to file agreements-

record —sealed informa- might

or unsealed —which contain

tion not wished to be disclosed to

scrutiny. agreed An order of dismissal