RENDERED : MARCH 18, 2010
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CENTRAL KENTUCKY NEWS-JOURNAL APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO . 2008-CA-001605-OA
TAYLOR CIRCUIT COURT NO . 03-CI-00059
HON . DOUGHLAS M. GEORGE (JUDGE,
TAYLOR CIRCUIT COURT), ET AL. APPELLEES
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
Central Kentucky News-Journal petitioned the Court of Appeals for a writ
of mandamus directing Honorable Doughlas M. George, Judge of the Taylor
Circuit Court, to grant it access to sealed copies of confidential settlement
agreements involving the Taylor County Board of Education, the Board of
Education of Campbellsville, and certain employees. The Court of Appeals
denied the writ and Central Kentucky News-Journal now appeals to this Court
as a matter of right. Ky. Const . § 115 ; CR 76.36(7) (a) . For reasons that follow,
we reverse the Order of the Court of Appeals .
I . Background
This appeal arises from the continuing efforts of Appellant, Central
Kentucky News-Journal, to gain access to two confidential settlement
agreements stemming from two separate lawsuits . Both suits were filed in
Taylor Circuit Court by Katherine Moss, a former employee of Campbellsville
High School and, at the time, a prospective employee of Taylor County High
School. Moss first brought an action against the Board of Education of the
Campbellsville Independent School District, its former Superintendent, Charles
Vaughan, in his official capacity, and the former Principal of Campbellsville
High School, Greg Chick, in both his official and individual capacities . Therein,
Moss alleged that she was the victim of sexual harassment. Moss later filed
suit against the Taylor County Board of Education, its Superintendent, Gary N .
Seaborne, in his official capacity, and the Principal of the Taylor County High
School, Gaylon Yarberry, in both his official and individual capacities . Therein,
Moss alleged that she was wrongfully refused employment .
After extensive discovery, the parties participated in private mediation
involving both cases, and a settlement was reached.' In consideration of the
settlement, the parties agreed that its terms would remain confidential .
Thereafter, in an agreed order of dismissal, the Taylor County Circuit Court
Judge, Doughlas George, dismissed the Complaints, sealed the terms of the
dismissal and settlement, and ordered the parties to strictly adhere to the
confidentiality provisions contained in the agreements .
Following these settlements, Appellant filed written requests under the
Kentucky Open Records Act with both school districts and sought "copies of
records with regard to the recent settlement" in each case. In response, both
1 The mediation was not ordered or overseen by the Taylor Circuit Court .
school districts declined to produce any such records, citing the orders of the
Taylor Circuit Court purporting to seal the terms of the dismissal and
settlement and its order for the parties to strictly adhere to the confidentiality
provisions contained in the agreements .
In accordance with the Open Records Act, Appellant appealed to the
Kentucky Attorney General . In a subsequent Open Records Decision, 07-ORD-
110, the Attorney General opined that the settlement agreements were public
records for purposes of the Act and must be disclosed to the public upon
request unless they qualified for exclusion under one or more of the Act's
exceptions. Nevertheless, because the Taylor Circuit Court entered an order
sealing agreements and directing the parties to adhere to their confidentiality
provisions, the Attorney General concluded that its authority was limited and
the issue of public access to the agreements was one to be resolved by the
court .
Thereafter, Appellant moved to intervene in both actions in the Taylor
Circuit Court so as to assert its right of access to the settlement agreements.
In addition, Appellant sought to have the trial court unseal the terms of the
agreements, vacate its orders regarding confidentiality, and to make any future
hearings related to the case open to the public and press. The trial court, in an
agreed order, consolidated the two cases in order to rule on Appellant's
motions . After reviewing the settlement agreements in camera, the trial court
denied Appellant's motion to intervene and held that it did not hold a strong
and legitimate interest in the terms of the agreements so as to warrant its
intervention .
Seeking relief from that order, Appellant petitioned the Court of Appeals
for a writ of mandamus . The Court of Appeals granted the petition in part and
held that Courier-Journal and Louisville Times Co. v. Peers, 747 S .W.2d 1.25 (Ky.
1988), established that Appellant, as a member of the news media, was entitled
to intervene and participate in a hearing on the underlying merits of its
claims .2 Accordingly, the Court of Appeals directed the trial court to vacate its
order denying Appellant's motion to intervene, to enter an order allowing it to
intervene, to address the remainder of its requested relief, and to file the
agreements into the record . For these reasons, the Court of Appeals concluded
that it would be premature to order the trial court to vacate its orders sealing
the agreements and directing the parties to adhere to their confidentiality
provisions . .
On remand, the trial court entered an order placing the agreements into
the record, asked the parties if they had further evidence to present on the
issue of whether the settlement agreements should be disclosed, and offered to
take additional sworn testimony at a hearing, if the parties desired. Appellant
advised the trial court that it had no additional evidence to present and
2 Because the trial court had previously conducted a hearing on the matter in
conjunction with Appellant's motion to intervene, the Court of Appeals held that
whether to conduct another hearing on remand would be within the trial court's
discretion .
3 In spite of the trial court's order, the settlement agreements were not transmitted
with the record on appeal. By this Court's own motion, the record has been
properly supplemented with the agreements for our review.
requested the court to rule on the record . The original parties filed affidavits
into the record, but objected to a further hearing. The trial court complied and
addressed the issue of whether the documents should be unsealed . The court
analyzed this Court's holding in Roman Catholic Diocese of Lexington v. Noble,
92 S .W.3d 724 (Ky. 2002) and the applicability of the Open Records Act's
privacy exemption before concluding that neither the First Amendment nor the
Open Records Act required the court to unseal the agreements for Appellant's
access .
Appellant again petitioned the Court of Appeals for a writ of mandamus
that would direct the trial court to vacate its order and open the settlement
agreements and any related documents for public view. The Court of Appeals,
citing this Court's decision in Hoskins v. Maricle, 150 S.W .3d 1 (Ky . 2004),
denied the petition and, in a brief opinion, held that Appellant failed to show
that the trial court was acting outside its jurisdiction or acting erroneously. It
is from this order that Appellant now appeals as a matter of right pursuant to
CR 76 .36(7)(b) .
On appeal, Appellant asks this Court to reverse the Order of the Court of
Appeals and order it to instruct the trial court to vacate its orders sealing the
terms of the settlement agreements. For the reasons that follow, we reverse the
Order of the Court of Appeals.
II. A propriateness of Writ
As this Court has often stated, a writ of mandamus is an "extraordinary
remedy and [the Courts] have always been cautious and conservative both in
entertaining petitions for and in granting such relief." Grange Mut. Ins. Co. v.
Trude, 151 S .W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S .W.2d
799, 800 (Ky. 1961)) . Indeed, the circumstances justifying the grant of such a
writ are limited :
A writ . . . may be granted upon a showing that (1) the lower court
is proceeding or is about to proceed outside of its jurisdiction and
there is no remedy through an application to an intermediate
court; or (2) that the lower court is acting or is about to act
erroneously, although within its jurisdiction, and there exists no
adequate remedy by appeal or otherwise and great injustice and
irreparable injury will result if the petition is not granted.
Hoskins, 150 S .W.3d at 10 (emphasis in original) . Here, Appellant's petition
did not challenge the trial court's jurisdiction, but rather claimed that the court
erroneously denied it access to the settlement agreement.
In the usual case, Appellant would have to first demonstrate that it is
without an adequate remedy by appeal or otherwise and that great injustice
and irreparable injury would result without issuance of the writ before the
Court of Appeals would consider the merits of its claim. See Trude, 151 S .W.3d
at 808 . Yet, by virtue of this Court's holding in Peers, 747 S .W.2d at 128, "the
news media have been made an exception to the usual rules regarding
standing to . . . seek mandamus [or prohibition] where access is denied", as it
"represents exigent circumstances justifying coming directly to the appellate
courts for an extraordinary remedy." Id. at 129 ; see also Noble, 92 S .W.3d 729
("Once a media representative moves to intervene and requests a hearing, the
representative may attack an adverse ruling by petitioning the Court of Appeals
for a writ of mandamus or prohibition.") (citing Peers, 747 S .W.2d at 129) ; cf.
Noble, 92 S .W.3d 729 ("But where there is no order denying access, there are
no exigent circumstances to justify granting the writ. Rather, the party seeking
the writ . . . must satisfy the usual and strict requirements for justifying relief
by prohibition or mandamus .") . Such must be the case, Peers explained,
because "[tJhe First Amendment guarantee of freedom of the press and the
Sixth Amendment guarantee of public trial in criminal cases, as presently
interpreted and applied in judicial decisions, have placed the news media in a
unique position in demanding access to court proceedings," a position that
"includes the right to gather news about a civil case." Peers, 747 S .W.2d at
127-28 (citing Branzburg v. Hayes, 408 U.S. 665 (1972); CBS, Inc. v. Young,
522 F.2d 234 (6th Cir. 1975)) .
III. Appellate Standard of Review
Where the "procedural prerequisites for a writ are satisfied, `whether to
grant or deny a petition for a writ is within the [Court of Appeals'] discretion,'
"[a)nd appellate review of that decision is limited to an abuse of discretion
inquiry." Rehm v. Clayton, 132 S .W.3d 864, 866 (Ky. 2004) (quoting Peterson v.
Shake, 120 S .W.3d 707, 711 (Ky. 2003) (Keller, J., concurring)) . Where pure
questions of law are involved, we review the Court of Appeals' determination de
novo . See e.g. Rehm, 132 S .W.3d at 866 (citing Kentucky Labor Cabinet v.
Graham, 43 S .W .3d 247, 251 (Ky. 2001)) .
IV. Analysis
Appellant argues that the Court of Appeals left uncorrected the trial
court's erroneous conclusion that the settlement agreements at issue should
remain under seal . We agree and conclude that the agreements must be
disclosed pursuant to Kentucky's Open Records Act. Because it is dispositive
of the issues on appeal, we see no need to address Appellant's related
arguments.
Generally, under Kentucky's Open Records Act, "[a]11 public records shall
be open for inspection by any person, except as otherwise provided by KRS
61 .870 to 61 .884 ." KRS 61 .872(l) . Though there are, indeed, several statutory
exceptions delineated by the General Assembly, the Act presumes a public
interest in the "free and open examination of public records ."4 KRS 61 .882(4) .
Accordingly, the Act's exceptions "shall be strictly construed," even when
disclosure would otherwise "cause inconvenience or embarrassment to public
officials or others ." Id .
Here, it is beyond question that the settlement agreements are public
4 As to the nature of the public interest involved, this Court has explained:
The public's "right to know" under the Open Records Act is premised
upon the public's right to expect its agencies properly to execute their
statutory functions. In general, inspection of records may reveal whether
the public servants are indeed serving the public, and the policy of
disclosure provides impetus for an agency steadfastly to pursue the
public good.
Kentucky Bd. ofExaminers ofPsychologists v. Courier~Iournal & Louisville Times
Co., 826 S.W.2d 324, 328 (Ky. 1992) ; see also Zink v. Commonwealth, Dept. of
Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828-29 (Ky. App . 1994) ("At its
most basic level, the purpose of disclosure focuses on the citizens' right to be
informed as to what their government is doing. That purpose is not fostered
however by disclosure of information about private citizens that is accumulated in
various government files that reveals little or nothing about an agency's own
conduct.") .
records for purposes of the Open Records Act's Appellees contend that the
agreements are, nevertheless, exempted from disclosure by virtue of the Act's
personal privacy exception . We cannot agree and find controlling this Court's
holding in Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader,
941 S.W .2d 469 (Ky. 1997) .
Lexington Herald-Leader involved an agency's denying a local newspaper
access to settlement agreements entered into by the agency and various
unidentified individuals in resolution of their claimed injuries. See id. at 470 .
Though the agency chose to reveal the amount of consideration, it would not
disclose the identity of the recipients nor the types of underlying injuries . Id.
Similar to the case at bar, the agency cited to the confidentiality provisions
contained in the agreements in denying the newspaper's request. Id. On
appeal, this Court held that Kentucky's Open Records Act required public
disclosure of the recipients, notwithstanding the agreements' confidentiality
provisions. See id. at 471-73 .
Lexington Herald-Leader concluded that because the settlement
agreements involved the expenditure of public funds, the public's interest in
the outcome of the settlement was, `a fortiori, strong: "[t]here could be no viable
contention that an agreement which represents the final settlement of a civil
lawsuit whereby a governmental entity pays public funds to compensate for an
5 A public record "means all books, papers, maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other documentation regardless of physical form
or characteristics, which are prepared, owned, used, in the possession of or
retained by a public agency ." KRS 61 .870(2) .
injury it inflicted is not a public record ." Id. at 471 . Indeed, the Court
explained, "even before enactment of the Open Records statute, we held . . .
that `the payment of city funds . . . is a matter with which the public has a
substantial concern, against which little weight can be accorded to any desire
of the plaintiff in that suit to keep secret the amount of money he received .'
d. (quoting Courier Journal & Louisville Times Co. v. McDonald, 524 S .W .2d 633
(Ky. 1974)) .
Moreover, Lexington Herald-Leader rejected the idea that a confidentiality
agreement may impute, per se, a public record with a privacy claim superior to
that of the public's right of access :
[A] confidentiality clause reached by the agreement of parties to
litigation cannot in and of itself create an inherent right to privacy
superior to and exempt from the statutory mandate for disclosure
contained in the Open Records Act. . . . In balancing the
sacrosanct right of an individual to privacy against legitimate
public concerns and the right of the public to inquire into the
workings of government, we find that a settlement of litigation
between private citizens and a governmental entity is a matter of
legitimate public concern which the public is entitled to scrutinize.
A confidentiality clause in such an agreement is not entitled to
protection . . .
941 S .W .2d at 472-73 ; see also id. at 472 ("[T]he specific statutory provisions .
. . reflect a policy determination favoring disclosure of public records over the
general policy of encouraging settlement. The people ofthis state, through their
elected representatives, have stated in the clearest ofterms that it is more
important that they have access to this type of information than that it remain
confidential. Thus, we hold that a public agency may not circumvent the
statutory requirements by agreeing to keep the terms of a settlement agreement
10
confidential .") (quoting Anchorage School District v. Anchorage Daily News, 799
P.2d 1191, 1193 (Alaska 1989)) (emphasis in original) .
Turning back to the case at bar, we think it quite clear that the
settlement agreements are presumably public records subject to disclosure,
regardless of their confidentiality provisions . Having reviewed the agreements,
it appears that the settlement proceeds were paid out of the Kentucky School
Board Insurance Trust, an insurance policy, the premiums for which had to
have been, at least indirectly, paid with public tax money. Moreover, the
agreements resolved claims between Moss, the school districts, and its agents
in their official (as well as personal) capacities, thus negating any notion that
the agreements concerned purely personal matters .
This notwithstanding, we must still address whether the agreements are,
as Appellees contend and the trial court found, exempt from disclosure under
.6 See Lexington Herald
the Act's personal privacy exception, KRS 61
.878(1)(a)
Leader, 941 S .W.2d at 473 ("[W]e recognize that in some cases there may be a
legitimate concern for personal privacy [in confidential settlement agreements]
which would be sufficient under the Act.") . Mindful that the Act's exemptions
must be strictly construed, KRS 61 .882(4), and that it is the burden of the
agency resisting disclosure to sustain its action, KRS 61 .882(3), this Court has,
6 KRS 61 .878(1)(a), in pertinent part, reads:
(1) The following public records are excluded from the application of KRS
61 .870 to 61 .884 and shall be subject to inspection only upon order of a
court of competent jurisdiction . . .
(a) Public records containing information of a personal
nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy . . .
indeed, held that certain information may be exempt under the Act where "it is
the type of information about which the public would have little or no
legitimate interest but which would be likely to cause serious personal
embarrassment or humiliation ." Lexington Herald-Leader, 941 S.W .2d at 472 ;
see also Kentucky Bd. of Examiners ofPsychologists, 826 S .W .2d at 324
(identities of persons sexually victimized held exempt) ; Zink, 902 S .W.2d at 825
(forms containing individuals' marital status, number of dependents, wage rate,
social security number, home address and telephone number held exempt) .
We make this determination by "weighing the privacy interests of the persons
involved against the public's interest in disclosure," asking "whether the
information sought is of a personal nature," and, if so, "whether the public
disclosure of this information would constitute a `clearly unwarranted invasion
of personal privacy.' Cape Publications, Inc. v. Univ. ofLouisville Found., Inc.,
260 S.W .3d 818, 821 (Ky. 2008) (citing Kentucky Bd. ofExaminers of
Psychologists, 826 S .W.2d at 327-28) .
Again having reviewed the agreements, we conclude that any contention
that their disclosure would constitute a clearly unwarranted invasion of
personal privacy is meritless. The agreements do not contain any of the
underlying details of the claims they purport to resolve that could expose Moss
or others to the risk of serious personal embarrassment of humiliation.
Rather, the agreements merely contain some scant personal identifiers that
could have easily been redacted.? Against such a minimal privacy interest lies,
as we have discussed, a strong public interest in knowing how its tax money is
being put to use by the state's agencies . While Appellees' claim that all that
remains to be disclosed is the amount of consideration paid to Moss as though
this were an illegitimate curiosity, we see it as bearing a direct nexus to exactly
how the public agency uses the public's money - whether as settlement
amounts or in regard to liability insurance premiums . Because KRS
.878(1)(a) did not apply to the settlement agreements so as to exempt them
61
from public disclosure under the Open Records Act, it was, therefore, error for
the trial court to so conclude . The Court of Appeals thus abused its discretion
in denying Appellant issuance of the writ.
V. Conclusion
For the foregoing reasons, we reverse the Order of the Court of Appeals
and remand this matter to that court for proceedings consistent with this
opinion .
Minton, C .J. ; Abramson, Noble, Schroder, and Venters, JJ., concur.
Cunningham, J., concurs by separate opinion in which Scott, J., joins.
CUNNINGHAM, J ., CONCURRING : I concur with the majority opinion
and believe, although we do not specifically hold today, that the Open Records
law is invoked - subject to its exemptions - anytime a public record keeping
agency is employed, even by private parties . Of course, it is the circuit clerk to
7 On remand, the court should redact any reference to Moss' social security number as
well as her counsel's tax identification number. In addition, the final page attached
to the agreements (including a photocopy of the check) need not be disclosed.
13
which I refer. Here, the litigation involves a public agency with public funds
being affected. However, even when the litigation is between private parties,
once the settlement agreement has been lodged with the clerk - a public agent
- then it becomes as any other document so filed. There are ample protections
for private parties under KRS 61 .878 .
I do not believe our holding here today is intended to infringe upon the
broad discretion of trial courts in guarding against prejudice which might arise
from public disclosure of certain evidence filed of record while the case is
ongoing. The temporary sealing of certain documents and other like
precautions may, in some cases, be necessary to insure both sides a fair trial.
Our holding here today refers only to settlement agreements filed at the
conclusion of the case .
Lastly, it seems that it would behoove private litigants not to file in the
public record any settlement agreements - sealed or unsealed - which might
contain information not wished to be disclosed to public scrutiny. An agreed
order of dismissal should be sufficient, and settlement agreements can be
suitably drawn to stand upon their own as far as future enforcement is
concern .
Scott, J., joins .
COUNSEL FOR APPELLANT:
Ashley Cleek Pack
James Lee Adams
Jeremy Stuart Rogers
Jon L. Fleischaker
Dinsmore 8v Shohl, LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEES:
David Lee Yewell
221 West Second Street
Owensboro, KY 42303
John Frith Stewart
Stephen Charles Emery
Stewart, Roelandt, Stoess, Craigmyle 8v Emery, PLLC
6506 West Highway 22
P.O . Box 307
Crestwood, KY 40014
Stewart Christopher Burch
Logan 8v Gaines, PLLC
114 West Clinton St.
Frankfort, KY 40601
Michael A. Owsley
Regina A. Jackson
Whayne Cravens Priest, III
English, Lucas, Priest 8v Owsley, LLP
1101 College Street
P.O. Box 770
Bowling Green, KY 42102-0770