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The Taxpayer Wins Again!

By Erica Horn and Maddie Schueler

Proponents of government accountability and tax transparency have another victory to celebrate with a recent Franklin Circuit Court decision finding pleadings in a tax case are subject to Kentucky’s Open Records Act. See Department of Revenue v. Mark F. Sommer, Case No. 12-CI-01582, Opinion and Order, 10/6/2014. The decision marks the 3rd opinion from Kentucky courts addressing the Open Records Act in slightly over a year, all of which found in favor of the taxpayer. See also Mark F. Sommer and Tax Analysts v. Department of Revenue, Civil Action No. 13-CI-29, Opinion and Order, 8/26/2014; Department of Revenue v. Timothy J. Eifler, No. 2012-CA-000302-MR (Ky. App. Sept. 20, 2013), disc. rev. denied, Aug. 13, 2014.

In August of 2012, attorney Mark F. Sommer submitted an Open Records Request to the Department of Revenue (the “Department”) seeking case pleadings in the action styled Insight Kentucky Partners II. L.P. v. Commonwealth of Kentucky, Civil Action No. 01-CI-0528 (Franklin Cir. Ct., Div. II) from November 8, 2001 through the date of the request. The Department denied Mr. Sommer’s request, arguing the pleadings contained in its internal case file were the property of the Franklin Circuit Court and Court of Appeals and subject to the exclusive jurisdiction of the courts. The Department relied upon Ex parte Farley, 570 S.W.2d 617 (Ky. 1978) for the proposition that such records are not subject to statutory regulation. The Department also claimed its process of maintaining an internal case file was a privileged act protected by the work product doctrine.

Mr. Sommer appealed the Department’s denial to the Attorney General. Finding in favor of Mr. Sommer, the Attorney General noted that an agency cannot argue it is not the custodian of its own records and cannot deny access to public records under the guise that another agency is the “primary custodian”. The Attorney General relied upon two previous rulings, 10-ORD-060 and 09-ORD-107, stating, “[t]he mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt.”

The Franklin Circuit Court agreed, noting:

The Court is entirely persuaded by the Attorney General’s decades of rulings which make clear that ‘there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records might be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.’

The Court found the Department’s reliance upon Ex parte Farley was misplaced, as the scope of that decision “must be limited to exclude from public inspection only court records subject to the courts’ control, which means those records maintained by the courts, for the courts, and in the discharge of the courts’ duties.” By contrast, duplicates of court records maintained by a public agency are not exempt from disclosure unless one or more of the exemptions from the Open Records Act apply.

The Court also rejected the Department’s argument based upon the work product doctrine, noting that the documents requested by Mr. Sommer already had been voluntarily disclosed upon filing in the open court record. The Court found that preventing disclosure of the requested documents under such a circumstance “would completely strip the Open Records Act of all meaning.” The Court ordered the Department to confirm or deny the existence of its case file in Insight and to produce the requested records if available.

The Court, however, declined to grant Mr. Sommer’s request for attorneys’ fees. The Court noted that attorneys’ fees may be awarded upon a finding that the records were willfully withheld, meaning the Court must have sufficient evidence to conclude the Department acted in bad faith. Citing City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Court noted that “willful” “connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester’s rights.” The Court found the Department’s actions were not willful because the Department “articulated some reason for withholding the records” and “argued in good faith for an exemption to avoid public disclosure” even though the Court ultimately did not agree with the Department’s position.

The Court’s refusal to grant attorneys’ fees in the instant case is interesting in light of the Franklin Circuit Court’s decision granting attorneys’ fees in a similar case, Mark F. Sommer and Tax Analysts v. Department of Revenue, Civil Action No. 13-CI-29, less than two months earlier. In the earlier case, the Court found the Department’s refusal to produce to Mr. Sommer final rulings appealed to the Kentucky Board of Tax Appeals warranted an award of attorneys’ fees. The Court did, however, find the Department’s withholding of unappealed final rulings was not willful and denied Mr. Sommer’s request for attorneys’ fees with respect to those rulings. Thus, although the standard used by the Court in determining whether to award attorneys’ fees is based upon whether the withholding of records was “willful”, the Court’s application of the standard appears to vary depending upon the particular facts at hand.