RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001615-ME
NATHANIEL PARISH APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
v. HONORABLE LIBBY G. MESSER, JUDGE
ACTION NO. 19-D-00504-001
KAITLYNN PATRICE PETTER AND
LEXINGTON-FAYETTE
URBAN COUNTY GOVERNMENT APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
MAZE, JUDGE: Appellant Nathaniel Parish appeals the Fayette Family Court’s
order denying his motion to compel Appellee Lexington-Fayette Urban County
Government (“LFUCG”) to produce body camera video, and appeals the order
granting Appellee Kaitlynn Patrice Petter’s petition for an order of protection. For
the following reasons, we affirm.
BACKGROUND
This case stems from an interpersonal protective order (“IPO”)
entered on behalf of Ms. Petter. Both parties were members of a co-ed business
fraternity at the University of Kentucky at the time of the incident. Following the
fraternity’s annual banquet on April 19, 2019, Mr. Parish and Ms. Petter attended
an after-party at an apartment complex in Lexington, Kentucky. At the after-party,
Ms. Petter invited certain members of the fraternity, including Mr. Parish, to her
apartment, which was in the same complex as the after-party.
At Ms. Petter’s apartment, she went in a room to retrieve some
playing cards. Mr. Parish followed her into the room, stood between her and the
door, and exposed himself to Ms. Petter while propositioning her for sex. Ms.
Petter ran from that room into another room and attempted to close the door, but
Mr. Parish was able to force himself into the room. A struggle ensued and Mr.
Parish sexually assaulted Ms. Petter until she could escape the room with the help
of friends who heard her screams. The Lexington Police Department (“LPD”)
responded to the scene. Based on the allegations, the police were equipped with
body-worn cameras to record their investigation. No arrest was made.
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On April 22, 2019, Ms. Petter filed for an IPO against Mr. Parish.
The family court entered an emergency, or temporary, IPO (“TIPO”), and a
hearing was scheduled for May 1, 2019. Because of the family court’s schedule,
however, the hearing was continued for June 26, 2019.
On May 8, 2019, Mr. Parish made an open records request (“ORR”),
pursuant to KRS1 61.870, et seq., to the LPD to obtain the incident report and body
camera video from the night of the incident. LPD is a division of the LFUCG,
which is the named party in this action. We will hereinafter refer to LPD as
LFUCG.
On May 9, 2019, LFUCG responded and provided the public report
associated with the incident. However, citing KRS 61.878(1)(h), which exempts
records of ongoing law enforcement investigations from disclosure, LFUCG would
not provide the body camera video of their investigation at that time.2
On May 13, 2019, Mr. Parish sent a notice to take the deposition of
the Records Custodian for the LFUCG on May 24, 2019 at 1:00 p.m. The notice
stated that records may be certified and provided in lieu of the deposition, pursuant
1
Kentucky Revised Statutes.
2
LFUCG also noted that Mr. Parish’s attorney failed to file an affidavit, pursuant to KRS
61.169(1)(d), to obtain the video.
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to KRE3 902 and CR4 45. According to the parties, Mr. Parish sent a subpoena
duces tecum to LFUCG requesting the body camera video with the notice.5
On May 14, 2019, LFUCG responded to the subpoena via a letter to
Mr. Parish’s counsel. LFUCG stated that it was not a party to the action in which
the subpoena was issued, so it would treat the subpoena as an ORR and, absent a
court order, the requested video was subject to the exemptions of KRS 61.878.
In response, Mr. Parish filed a motion for the family court to compel
LFUCG to produce the body camera video. LFUCG filed a response asking the
family court to deny Mr. Parish’s motion because Mr. Parish did not follow the
proper statutory procedure to challenge an ORR denial, and he used a subpoena to
circumvent the statutory requirements of the Open Records Act (“ORA”). On May
29, 2019, the family court held a hearing in which Mr. Parish and LFUCG argued
their respective positions on the production of the body camera video. Ms. Petter
took no position on the matter.
On June 11, 2019, the family court entered an order denying Mr.
Parish’s motion to compel. The family court held the proper method in which to
3
Kentucky Rules of Evidence.
4
Kentucky Rules of Civil Procedure.
5
No subpoena for the body camera video is contained within the appellate record, although none
of the parties disputes its existence. The appellate record only contains the notice to take the
deposition of the LFUCG Records Custodian.
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challenge the denial of an ORR is contained within the ORA and “not through this
unrelated civil action where LFUCG is not a party and lacks standing.”
Thereafter, Ms. Petter’s petition for an IPO was heard on September
27, 2019.6 At the hearing, Ms. Petter testified regarding the incident and her need
for ongoing protection from Mr. Parish. Ms. Petter also called Aaron Mathias as a
witness who testified regarding the night of the incident and how he helped Ms.
Petter escape the assault. Both Ms. Petter and Mr. Mathias were cross-examined
by Mr. Parish’s attorney. On advice of counsel, Mr. Parish did not testify due to
the ongoing criminal investigation of the allegations. Mr. Parish did not call any
witnesses. After hearing closing arguments, the family court granted the IPO and
found that an act of sexual assault occurred and was likely to occur again. This
appeal followed.
ANALYSIS
As an initial matter, we disagree with the family court that an ORR
was the only means for Mr. Parish to obtain the body camera video. LFUCG is a
public agency subject to the ORA, which provides for the “free and open
examination of public records[.]” KRS 61.871. LFUCG declined to produce the
body camera video under the “law enforcement exception,” which excludes from
6
The June 26, 2019 hearing date was continued, without objection, to September 27, 2019,
because potential student witnesses had left UK for summer break and were unable to attend the
June date.
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disclosure: “[r]ecords of law enforcement agencies . . . that were compiled in the
process of detecting and investigating statutory . . . violations if the disclosure of
the information would harm the agency . . . by premature release of information to
be used in a prospective law enforcement action[.]” KRS 61.878(1)(h). When an
agency, such as LFUCG, denies an ORR, the requester has two ways to challenge
the denial. He may ask the Attorney General to review the matter. KRS
61.880(2)(a). Or, he may file an original action in the circuit court seeking
injunctive and/or other appropriate relief. KRS 61.882. The agency then bears the
burden of proving that its decision to withhold the record(s) was justified under the
ORA. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 (Ky.
2013).
But rather than pursuing any of these remedies under the ORA, Mr.
Parish served a notice to take deposition and subpoena on LFUCG. This sequence
may be what confused the family court and led to its error. An IPO proceeding,
like a domestic violence proceeding, is a civil action. See Wolfe v. Wolfe, 393
S.W.3d 42, 44-45 (Ky. App. 2013); see also KRS 456.010, et seq. Civil cases,
including IPO proceedings, are governed by the Rules of Civil Procedure. CR
1(2); Wolfe, supra. For discovery in civil cases, CR 26 allows parties to obtain
discovery regarding any matter that is relevant and not privileged. And, pursuant
to CR 45, a subpoena is one method to obtain testimony and/or produce documents
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or tangible items from a nonparty, like LFUCG. See Metropolitan Property &
Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 45 (Ky. 2003) (nonparty witness can
be required by subpoena duces tecum to produce documents).
Contrary to the family court’s conclusion, the processes under the
ORA and the Civil Rules are not mutually exclusive. Furthermore, we find no
authority suggesting that the election of one remedy would necessary exclude
resort to the other.7 Simply because Mr. Parish attempted to obtain the body
camera video through an ORR before serving the notice to take deposition and
subpoena does not mean he had to challenge the denial of his ORR before seeking
discovery of the video in his civil case.8
7
In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860 (Ky. App. 2001), counsel for a
party to an unemployment proceeding sought to obtain documents from a state agency through
the discovery process in related civil litigation. The Supreme Court held that the ORA was the
exclusive remedy because administrative proceedings are not subject to the Rules of Civil
Procedure. “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.” Id. at 863 (citation omitted). By contrast, the IPO proceeding in this case is clearly
subject to discovery under the Civil Rules. Hence, an ORR is not the exclusive remedy to obtain
the records in this case.
8
To be clear, whether LFUCG’s denial of Mr. Parish’s ORR for the body camera video was
appropriate is not before this Court. Indeed, Mr. Parish does not even dispute that the video is
exempt from public disclosure. But, as discussed above, a public agency’s response to a
subpoena should be independent and separate from its response to an ORR. The reason for
objecting to a subpoena should be based on the rules of discovery and not based on the ORA.
Consequently, records exempt from disclosure through the ORA may still be discoverable in a
civil case. Stewart, 41 S.W.3d at 863. The discovery of such records is just limited by “the
Rules of Civil Procedure governing pretrial discovery[.]” KRS 61.878(1).
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We hold that a party to litigation may seek public records from a
nonparty public agency through discovery requests, including a notice to take
deposition and subpoena. If the nonparty public agency objects, then the trial court
must determine whether the records are discoverable or not in that case. This
evaluation is independent of whether the party seeking to compel discovery is also
a requester of public records under the ORA.9
LFUCG further complains that it cannot fully defend its rights when
served with a subpoena because it is not a party to the action and, therefore, lacks
standing to make legal arguments in support of its position. We disagree. When a
nonparty is served with a notice to take deposition and subpoena, the nonparty may
file a motion to quash in that court action even though it is not a party. See Allstate
Prop. & Cas. Ins. Co. v. Kleinfeld, 568 S.W.3d 327, 333 (Ky. 2019). In this case,
Mr. Parish brought a motion to compel the body camera video instead of waiting
for LFUCG to file a motion to quash the subpoena or a motion for a protective
9
The Court must also question if LFUCG’s decision to treat a civil subpoena as an ORR is
common practice for LFUCG and if this decision may have contributed to the trial court’s error.
As stated, in response to Mr. Parish’s notice to take deposition and subpoena, LFUCG sent a
letter stating it was “elect(ing) to treat the subpoena as an open records request.” Then, LFUCG
cited the “law enforcement exemption” of KRS 61.878(1)(h) as the reason for not complying
with the subpoena. In that letter, LFUCG cited no authority or basis for treating Mr. Parish’s
subpoena as an ORR. Additionally, in its response to Mr. Parish’s motion to compel, LFUCG
stated that this issue “has been heard several times in other divisions of the Fayette Circuit
Court” and, for support, cited a case in which another circuit court division denied a party’s
motion to compel body camera video. LFUCG’s attorney cited this same information during the
May 29, 2019 hearing on the motion to compel.
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order. Either way, LFUCG had a right to argue its position. And, if the family
court had granted Mr. Parish’s motion to compel, LFUCG would have enjoyed the
right to immediately appeal that ruling. LFUCG could and did fully defend its
rights in the family court and now in this Court. The subpoena process does not
frustrate the rights of LFUCG as a public agency.
We next turn to LFUCG’s argument that Mr. Parish circumvented the
statutes that specifically govern access to “body-worn camera recordings,” like the
video in this case. LFUCG is referring to KRS 61.168 and KRS 61.169, which
were enacted in 2018. Under these statutes, LFUCG claims Mr. Parish’s attorney
should have submitted an affidavit to obtain the video.
Pursuant to these statutes, conceivably, Mr. Parish could have viewed
the video and his attorney could have obtained a copy of the video if she executed
an affidavit.10 As stated, however, Mr. Parish is a party in a civil case and is not
bound to obtain discovery through the ORA, even though he is seeking a video
which is subject to the ORA. Even under the body camera video statutes, the
processes provided under the ORA do not supplant discovery under the Rules of
Civil Procedure where body camera video is sought.
10
KRS 61.168 and KRS 61.169 provide many requirements and exceptions to the disclosure of
body camera video, so the Court cannot assume Mr. Parish would have been able to view the
video or his attorney would have been able to obtain a copy of the video.
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LFUCG also makes a policy argument that Mr. Parish must follow the
ORA to obtain the body camera video because, otherwise, a subpoena could be
used to gain sensitive information that is normally exempt under the ORA.
However, the Rules of Civil Procedure also provide safeguards to protect the
disclosure of sensitive information. For instance, pursuant to CR 26.03(1), “[u]pon
motion by a party or by the person from whom discovery is sought, and for good
cause shown,” the family court “may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]” (Emphasis added.) LFUCG could have used CR 26.03(1) to
seek a protective order, which could have asked the family court not to disclose the
video (CR 26.03(1)(a)), to limit how and to whom the video was produced (CR
26.03(1)(b) and (c)), or to seal the discovery after production (CR 26.03(1)(f)).
Under the Rules of Civil Procedure, the video could still be protected from public
disclosure. See Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846,
848-49 (Ky. 2009) (holding a court must balance its own inherent right to control
access to public records produced in discovery with the public’s right of access,
and this balancing is left to the discretion of the court).
In sum, the family court erred in ruling that the ORA “exemptions
would become meaningless if any person could usurp them through the power of
subpoena.” Mr. Parish is not “any person.” He is a party to a civil action who may
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use the Rules of Civil Procedure to seek discovery from a party or nonparty, like
LFUCG. Therefore, we conclude that the family court erred in failing to evaluate
the motion pursuant to the Rules of Civil Procedure.
Nevertheless, we find this error to be harmless considering the
evidence supporting entry of the IPO. Under CR 61.01,
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with
substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of
the parties.
An error is not prejudicial and a judgment should not be set aside “if upon
consideration of the whole case it does not appear that there is a substantial
possibility that the result would have been any different[.]” Rankin v.
Commonwealth, 265 S.W.3d 227, 233 (Ky. App. 2007) (citation omitted); see also
McFall v. Peace, Inc., 15 S.W.3d 724, 726 (Ky. 2000).
A court may enter an IPO if, following the hearing, the court “finds by
a preponderance of the evidence that dating violence and abuse, sexual assault, or
stalking has occurred and may again occur[.]” KRS 456.060(1). While the family
court’s order denying Mr. Parish’s motion to compel was based on an erroneous
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presumption that the ORA controlled, Mr. Parish has not made any specific
allegation of how the nondisclosure of the video affected his substantial rights.
Mr. Parish claims that, because he was unable to view the body
camera video, he did not have a full evidentiary hearing at the IPO proceeding. He
claims the family court’s decision violated his due process rights and requires a
reversal of the IPO against him. With respect to the hearing requirement, we have
held that “[d]ue process requires, at the minimum, that each party be given a
meaningful opportunity to be heard.” Wright v. Wright, 181 S.W.3d 49, 53 (Ky.
App. 2005) (citation omitted). A party has a meaningful opportunity to be heard
where the family court allows each party to present evidence and give sworn
testimony before making its decision. Id.
Under this standard, we cannot conclude that the family court’s
decision to enter an IPO was clearly erroneous or an abuse of discretion. While the
family court’s order denying Mr. Parish’s motion to compel was based on an
erroneous presumption that the ORA controlled, Mr. Parish has not made any
specific allegation of how the nondisclosure of the video affected his substantial
rights. He was given a meaningful opportunity to be heard and had a full
evidentiary hearing. Both Mr. Parish and Ms. Petter were represented by counsel.
Ms. Petter gave sworn testimony before the family court and presented Mr.
Mathias as a witness. Both were subject to cross-examination by Mr. Parish’s
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counsel. Mr. Parish was given an opportunity to testify but declined. Even
assuming that the body camera video was subject to discovery under the Civil
Rules, we cannot find a substantial possibility that the result of the IPO hearing
would have been any different. Therefore, any error in this regard was clearly
harmless.
CONCLUSION
For the foregoing reasons, we affirm the order of the Fayette Family
Court granting Ms. Petter’s petition for an interpersonal protective order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE KAITLYNN
PATRICE PETTER:
Sarah E. Clay
Louisville, Kentucky Hunter Hickman
Lexington, Kentucky
BRIEF FOR APPELLEE
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT:
Michael Sanner
Brittany Griffin Smith
Lexington, Kentucky
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