PURDUE PHARMA L.P., PURDUE PHARMA, INC., THE PURDUE FREDERICK COMPANY, INC., D/B/A THE PURDUE FREDERICK COMPANY, PURDUE PHARMACEUTICALS, L.P., THE P.F. LABORATORIES, INC. APPELLANTS
BOSTON GLOBE LIFE SCIENCES MEDIA, LLC d/b/a STAT APPELLEE
FROM PIKE CIRCUIT COURT HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 07-CI-01303
FOR APPELLANTS: Daniel E. Danford Trevor W. Wells Lexington,
Kentucky Bethany A. Breetz Louisville, Kentucky Pamela T. May
AND ORAL ARGUMENT FOR APPELLEE: Jon. L. Fleischaker
ARGUMENT FOR APPELLANTS: Daniel E. Danford Lexington,
BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES.
Pharma L.P., Purdue Pharma Inc., The Purdue Frederick
Company, Inc. d/b/a The Purdue Frederick Company, Purdue
Pharmaceuticals L.P., and the P.F. Laboratories, Inc.
(collectively, "Purdue") appeal the Pike Circuit
Court's ruling that court records should not be concealed
from public inspection and its order that specific records be
unsealed. We affirm.
2007, Purdue pleaded guilty to misbranding OxyContin, a
prescription opioid pain medication, with the intent to
defraud or mislead, a felony under the federal Food, Drug,
and Cosmetic Act. United States v. Purdue Frederick Co.,
Inc., 495 F.Supp.2d 569, 570 (W.D. Va. 2007). Purdue
admitted it deceptively marketed and promoted OxyContin as
less addictive, less subject to abuse, and less likely to
cause tolerance and withdrawal than other medications.
of its plea, Purdue agreed to "monetary sanctions
totaling $600 million[.]" Id. at 572. Purdue
placed almost $60 million in escrow for states electing to
settle their claims. Forty-nine states chose to settle;
Kentucky did not.
2007, the Commonwealth of Kentucky, by and through its
Attorney General, and jointly with Pike County, filed suit
against Purdue. They alleged Purdue had violated Kentucky law
by misleading health care providers, consumers, and officials
regarding the risks of addiction, that the misrepresentation
led doctors to overprescribe the drug, and that
overprescribing resulted in excessive Medicaid spending on
OxyContin and programs to address abuse associated with the
drug. Purdue removed the case to federal court where it
lingered for several years.
matter was remanded to Pike Circuit Court in late 2013 and
the parties began discovery. To streamline the discovery
process, the parties crafted a thirty-three-page Agreed
Qualified Protective Order. The circuit court approved the
agreed order and found "the parties have shown good
cause" for a protective order "pursuant to
26.03." (R. 1478). The protective order allowed the
parties to unilaterally designate information, documents,
depositions, and exhibits as confidential. It also provided
that documents designated confidential would not be subject
to the Attorney General's disclosure obligations under
Kentucky's Open Records Act,  and it required that any
motions or pleadings filed with the court containing or
attaching confidential documents be filed under seal.
produced over 17 million pages of documents, many of which
were designated confidential. Relatively few of those documents
were filed with the circuit court; when they were filed, they
were filed under seal. Those relevant to this appeal include:
the deposition transcript of Dr. Richard Sackler, a Purdue
board member; several discovery motions and exhibits; and
summary judgment motions and exhibits.
discovery, the parties deposed Dr. Sackler. The court
reporter filed Dr. Sackler's deposition transcript with
the circuit court as required by CR 30.06. In accordance with
the protective order, it was filed under seal.
five discovery motions discussed or included confidential
documents as exhibits and those motions, in whole or in part,
were filed under seal. The circuit court only ruled on the
merits of one of these five discovery motions. (R. 1802;
order granting the Commonwealth's motion to compel Purdue
to produce documents concerning OxyContin that Purdue
produced in other OxyContin litigations). A ruling on a
second motion to compel was abated. (R. 1654). The remaining
motions to compel were not ruled upon at all.
April 2014, the Commonwealth moved for partial summary
judgment based, at least in part, on Purdue's failure to
respond to requests for admission. The court ruled that
Purdue's failure to respond was an admission of the facts
asserted in the requests. Purdue asked the circuit court to allow
withdrawal of the admissions pursuant to CR 36.02,
but the request was denied.
then turned to this Court and petitioned for a "writ of
prohibition seeking to prohibit the Pike Circuit Court from
enforcing [the] order deeming [the] requests for admissions .
. . as admitted." Purdue Pharma L.P. v. Combs,
506 S.W.3d 337, 339 (Ky. App. 2014). While that petition was
pending before this Court, the circuit court entered an order
abating its consideration of the Commonwealth's motion
for partial summary judgment. (R. 1650). When this Court
denied the writ petition, id. at 344, Purdue
appealed to the Supreme Court. Notice of Appeal, Purdue
Pharma, L.P. v. Commonwealth of Kentucky, ex rel. Jack
Conway, Attorney General, 2014-SC-000168 (Ky. Apr. 2,
the Supreme Court addressed the writ denial, Purdue and the
Commonwealth settled the litigation for $24 million. The
settlement date was December 18, 2015. Timing was such that
the Supreme Court would never review this Court's denial
of Purdue's writ petition. Settlement also had a two-fold
benefit to Purdue: (1) it avoided judicial resolution of
Purdue's liability based on the circuit court's
consideration of otherwise sealed documents, which Purdue
argues justifies keeping the documents sealed, and (2)
settlement eliminated the possibility of future issue
preclusion because it would not be a decision on the merits.
Miller v. Admin. Office of Courts, 361 S.W.3d 867,
872 (Ky. 2011) (to have preclusive effect, prior decision
must be on merits).
parties presented the settlement agreement to the circuit
court for approval. It said the protective order would remain
in effect, and the parties were not to disclose confidential
documents. The court entered judgment approving and adopting
the settlement agreement on December 22, 2015. That judgment
also directed how the Attorney General was to utilize the
Boston Globe Life Sciences Media, LLC d/b/a STAT then
submitted an open records request to the Attorney General for
Dr. Sackler's deposition transcript. The Attorney
General, citing the protective order and the settlement
agreement incorporating that order, denied STAT's
then moved to intervene in this case and to unseal Dr.
Sackler's deposition and other sealed documents. Purdue
did not oppose intervention, but vigorously opposed the
request to unseal any sealed confidential documents on
grounds that they were not subject to the common law right of
11, 2016, the circuit court granted both of STAT's
motions. Applying Roman Catholic Diocese of Lexington v.
Noble, 92 S.W.3d 724 (Ky. 2002) ("Noble
I"), the circuit court found a common law right of
public access to the pre-trial discovery materials previously
sealed. It noted that the parties settled shortly after
filing Dr. Sackler's deposition in the clerk's office
and following extensive briefing on dispositive motions that
relied upon multiple sealed exhibits and briefs. Quoting from
Fiorella v. Paxton Media Group, 424 S.W.3d 433 (Ky.
App. 2014), the circuit court indicated that those court
records were appropriate factors in the parties' decision
to settle and in the circuit court's decision to enter
judgment approving settlement. It further found a strong
public interest in disclosing court records in matters
involving settlements with government agencies, noting
"the public interest in accessing the materials used to
make the decision to settle is more than minimal." (R.
2107). It held there is "no higher value than the public
(via the media) having access to these discovery materials so
that the public can see the facts for themselves."
Id. This appeal followed.
decision to grant or deny public access to a circuit
court's records is a matter soundly within the circuit
court's discretion. Cline v. Spectrum Care Academy,
Inc., 316 S.W.3d 320, 325 (Ky. App. 2010). We will not
disturb its decision absent an abuse of that discretion.
case is about a rule of "common law." More
specifically, it is about a rule of Kentucky common law. Our
consideration of its progenitor - the common law of England,
and of versions of federal common law that vary among the
circuits, is helpful, but neither federal law nor English
common law directly answers the question posed here. As said
early in our jurisprudence, specifically regarding court
records, "the authority to keep and give out copies of
records, must be derived from the laws of the state where the
record is . . . ." Thomas v. Tanner, 22 Ky. (6
T.B. Mon.) 52, 54 (1827).
distinctiveness of these various common laws is not as
self-evident as one might think. Too often, the phrase
"the common law" is used in our appellate opinions
without any jurisdictional adjective. That practice can lead
one to misconceive of "the common law" as a
borderless body of legal principles, articulable by a court
in any jurisdiction and just as applicable here as there.
That is not so. Erie R. Co. v. Tompkins, 304 U.S.
64, 79, 58 S.Ct. 817, 823, 82 L.Ed. 1188 (1938) (rejecting
notion of a "transcendental body of law" (citation
and internal quotation marks omitted)).
jurisdiction has its own common law. Each distinct body of
common law evolved as each jurisdiction reacted to politics,
technology,  sociology,  geography,  and even
history,  specific to that jurisdiction. The
evolution of Kentucky common law is prototypical of this
Kentucky lawmakers, including its jurists, were among that
first generation of Americans who were never subjects of a
king. They fully embraced the revolutionary idea of
establishing a "government of laws, and not of
men." Marbury v. Madison, 5 U.S. (1 Cranch)
137, 163, 2 L.Ed. 60 (1803). Kentucky jurists expressed their
reverence of the laws, even well beyond the founding
documents, when they said, "The preservation of the
records, files and returns, in the various departments of
government, is of such importance, . . . that nothing can
justify it[s violation.]" Commonwealth v.
Barry, 3 Ky. (Hard.) 229, 245 (1808); Marshall v.
Commonwealth, 2 Ky. (Sneed) 326, 326 (1804)
("preservation of the records and papers of a court, and
the keeping them at a convenient place, are objects of such
great importance"). These trans-Appalachians took to
independence from English institutions more fervently even
than their Atlantic Coast countrymen, and their pioneer
spirit was reflected in their jurisprudence.
Kentucky's independent judiciary and independent
true that Kentucky adopted the common law of England in 1792,
through our mother Commonwealth of Virginia. Hilen v.
Hays, 673 S.W.2d 713, 715 (Ky. 1984) (citing Ky. Const.
§ 233). But it is also true that we soon distanced
ourselves from our trans-Atlantic legal roots. Denny v.
Thompson, 236 Ky. 714, 33 S.W.2d 670, 673 (1930)
("The common law of England local to that kingdom never
became the law of this state, but only the laws of a general
nature and suitable to our conditions . . . ."). In
1806, at the Frankfort, Kentucky trial of Aaron Burr, Henry
Clay denounced "the courts of Great Britain . . . where
law is tyranny, and its ministers tyrants, when compared with
the mild system and impartial judges of our free constitution
. . . ." Perhaps thus inspired, "in 1808 the
General Assembly registered its antipathy to British
influences and customs by providing that all reported cases
adjudged in the kingdom of Great Britain since July 4, 1776,
'shall not be read nor considered as authority in any of
the courts of this Commonwealth, any usage or custom to the
contrary notwithstanding.'" Denny, 33
S.W.2d at 673 (quoting 3 Littell's Laws 475 (superseded
by KS 2418 (superseded by KRS 447.040
("The decisions of the courts of Great Britain rendered
since July 4, 1776, shall not be of binding authority in the
courts of Kentucky.")))); Campbell v. W.M. Ritter
Lumber Co., 140 Ky. 312, 131 S.W. 20, 21 (1910)
("[T]he decisions of the courts of Great Britain . . .
shall not be binding authority in the courts of this
then, our courts rendered "two centuries of
Kentucky common law[.]" Nationwide Mut.
Ins. Co. v. State Farm Auto. Ins. Co., 973 S.W.2d 56, 61
(Ky. 1998) (Cooper, J., dissenting) (emphasis added).
Certainly, we look to the common law of other jurisdictions
for inspiration, explanation, or simply imitation but, when
we do, the threads we borrow must fit naturally in the warp
and weft of our own unique common law. We borrow concepts
"not indeed because it is law in England [or federal
law], but because, being based on sound reason, it is [or in
our opinion ought to be] law every where." Ray v.
Sweeney, 77 Ky. (14 Bush) 1, 11 (1878).
to recognize this distinct and independent nature of Kentucky
common law and of an independent judiciary, Purdue conflates
"Kentucky and federal law uphold[ing] a common law right
of access[, ]" (Appellant's brief, p. 6). Purdue
Only documents necessary to monitor the courts - documents
that play some role in a trial court's adjudication of
litigants' subjective rights - bear a presumption of
access. . . . Documents such as the sealed documents here -
that were neither admitted into evidence nor relied upon in
an adjudication of litigants' substantive rights - are
not "judicial documents" and thus "lie
entirely beyond the presumption's reach."
Courier-Journal, Inc. v. McDonald-Burkman, 298
S.W.3d 846, 849-50 (Ky. 2009), quoting U.S. v.
Amodeo, 71 F.3d 1044, 1048 (2nd Cir. 1995)
(Appellant's brief, pp. 6-7). This interpretation would
"erroneously place the burden on the [party seeking a
court record] to prove that sealing the record was improper .
. . ." Cline v. Spectrum Care Acad., Inc., 316
S.W.3d 320, 325 (Ky. App. 2010); City of St. Matthews v.
Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky.
1974) ("the burden shall be upon the custodian to
justify the refusal of inspection with specificity"). It
would reverse Kentucky's presumption of broad public
access, making all court records inaccessible until
the public or press prove the document was admitted into
evidence or until the court relies on the document to
adjudicate the case. And yet, we can understand how this
interpretation can be teased out of our jurisprudence if one
limits research, as Purdue has done, to federal case law and
recent Kentucky cases that cite it.
thorough analysis of Kentucky jurisprudence reveals important
aspects of our common law that are inconsistent with
Purdue's arguments. It demonstrates a broader purpose
underlying Kentucky's common law presumption of
court-record access than both its federal and its English
common law counterparts. It also shows that when the Supreme
Court expanded our analytical toolbox with an idea from
Amodeo II, adapting and naming it the
"sliding-scale approach" for use by Kentucky
courts, it had no intention of narrowing that broader purpose
to align with federal courts. Our analysis further reveals
that the common phrase "judicial documents" has
been redefined by the Second Circuit as a unique legal idiom
used in some federal courts, but that Kentucky courts have
always used the term in its ordinary sense, without the
slightest hint that we narrowed our presumption of
court-record access to comport with that of the Second
Circuit. For well over a century and to this day when our
courts use the term "judicial documents," we
understand it to be synonymous with "court
records." See, e.g., Cline v.
Waters, 28 Ky. L. Rptr. 679, 90 S.W. 231, 232
learned counsel arguing this case have demonstrated, somewhat
justifiably, a misunderstanding of the Kentucky
common law presumption of the public's right to access
court records, we take the time here to thoroughly explain
how Noble I and McDonald-Burkman and
Fiorella depend upon and apply that common law to
the unique circumstances of those cases.
Kentucky's long-standing common law right of access to
argument largely relies on references to federal cases cited
in a trio of Kentucky opinions: Noble I and
McDonald-Burkman and Fiorella. This
argument presumes we rendered these opinions in a vacuum, and
not as elaboration upon our existing, well-developed common
law right of access to court records. That presumption is the
weakness in Purdue's otherwise internally logical
argument. Although these cases, and even Purdue, acknowledge
Kentucky's "long-standing presumption of public
access to judicial records," McDonald-Burkman,
298 S.W.3d at 848, none takes the time to discuss any of the
earlier Kentucky common law. We shall do so.
earliest authority upon which Purdue and the Kentucky cases
rely is Nixon v. Warner Communications, Inc., 435
U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Ironically,
Nixon bases its analysis, in part, on the early
Kentucky common law that the triad of cases necessarily
presumes. Not surprisingly, when we research that early
common law, we see that the abbreviated approach of these
three Kentucky appellate opinions is entirely in harmony with
it. Our analytical journey begins with Purdue's most
cited case, McDonald-Burkman.
Kentucky Supreme Court in McDonald-Burkman took
something of a shortcut when it cited Nixon instead
of the Kentucky common law Nixon cites.
McDonald-Burkman, 298 S.W.3d at 848 ("Under the
common law, there is a longstanding presumption of public
access to judicial records." (citing Nixon, 435
U.S. at 597, 98 S.Ct. at 1311-12 (citing Fayette County
v. Martin, 279 Ky. 387, 395-96, 130 S.W.2d 838, 843
(1939)))). There might be less confusion today if one of the
triad of cases had quoted Nixon rather than merely
citing it. However, citation should be enough for the
thorough researcher because the Supreme Court of the United
States began its own analysis by looking to Kentucky common
law as expressed in Fayette County v. Martin. And
so, McDonald-Burkman refers us to Nixon;
and Nixon takes us in our own jurisprudence back to
Supreme Court in Nixon explains the reason for
looking to state cases like Martin. The question of
common law access to federal court records, said the
Court, is "[a]n infrequent subject of litigation [and]
its contours have not been delineated with any
precision." Id., 435 U.S. at 597, 98 S.Ct. at
1311. Of the several state cases Nixon cites, the
Court began with the Kentucky case of Fayette County v.
Martin, 279 Ky. 387, 130 S.W.2d 838 (1939),
overruled by City of St. Matthews v. Voice of St.
Matthews, Inc., 519 S.W.2d 811 (Ky. 1974).
Nixon, 435 U.S. at 597 n.7, 98 S.Ct. at
would our nation's highest court turn first to a Kentucky
case when it was neither the "leading
case" nor the earliest case on
point? Perhaps it is due to the fact, as we
noted above, that our state once had a reputation for
distinguishing our jurisprudence from English common law.
Additional proof of Kentucky's forward thinking judicial
independence is our attack on the primacy of federal
interpretations of state common law - the widely criticized
doctrine established in Swift v. Tyson. 41 U.S. (16
Pet.) 1, 18, 10 L.Ed. 865 (1842), overruled by Erie R.
Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
"held that federal courts . . . need not, in matters of
general jurisprudence, apply the unwritten law of the state
as declared by its highest court[, i.e., state
common law]; that they are free to exercise an independent
judgment as to what the common law of the state is-or should
be[.]" Erie R. Co., 304 U.S. at 71, 58 S.Ct. at
819. As scholars put it, the Supreme Court of the United
States used this "ridiculous case as the opportunity for
federalizing - or nationalizing - a large part of the common
law of the United States." Koen Lenaerts & Kathleen
Gutman, "Federal Common Law" in the European
Union: A Comparative Perspective from the United States,
54 Am. J. Comp. L. 1, 23 (2006) (quoting Grant Gilmore, The
Ages of American Law 32 (1977)). As soon as Swift
was rendered, the Kentucky high court was among the first to
criticize it and the doctrine it created.
century later, the proverbial camel's back-breaking straw
came from Kentucky, too. It was a case in which a litigant
forum shopped to avoid Kentucky common law in favor of a
contradicting federal court's "independent judgment
as to what the common law of the state [of Kentucky] should
be."Erie, 304 U.S. at 71, 73-74, 58
S.Ct. at 819-20. Erie was the Supreme Court's
final response to widespread criticism and it reversed
Swift v. Tyson, rejecting the idea "that there
is 'a transcendental body of law outside of any
particular State but obligatory within it[.]'"
Id. at 79, 58 S.Ct. at 823 (quoting Black &
White Taxicab & Transfer Co. v. Brown &
Yellow Taxicab & Transfer Co., 276 U.S. 518, 533, 48
S.Ct. 404, 409, 72 L.Ed. 681 (1928) (Holmes, J.,
revisited this Erie episode of every lawyer's
education to remind the reader that when determining Kentucky
common law, we may benefit by considering federal cases, but
they are not necessary and certainly not controlling. A
reciprocal scenario is just as likely, as in Nixon
when the Supreme Court of the United States turned to
Kentucky, and other states, for enlightenment about their
versions of the common law right of access to court records.
Nixon, the Supreme Court distilled Martin
and the common law concepts in other state cases for
application in the federal courts and said, "It is clear
that the courts of this country recognize a general right to
inspect and copy public records and documents, including
judicial records and documents." Nixon, 435
U.S. at 597, 98 S.Ct. at 1312 (citations omitted). But it
noted a "contrast to the English practice, [in that]
American decisions generally do not condition enforcement of
this right on a proprietary interest in the document or upon
a need for it as evidence in a lawsuit." Id.
(citation omitted). Relevant to our own analysis, the Court
said the right of "access has been found, for example,
in the citizen's desire to keep a watchful eye on the
workings of public agencies, and in a newspaper
publisher's intention to publish information concerning
the operation of government [.]" Id. at 597-98,
98 S.Ct. at 1312 (citations omitted).
federal interpretations in their place, we return to
Nixon's Kentucky source for the common law,
Fayette County v. Martin, and the contrast
Nixon recognized between English and American common
law access to court records. Nixon, 435 U.S. at 597,
98 S.Ct. at 1312.
Martin was rendered in 1939, jurisprudence regarding
court-record access, in Kentucky and nationally, was still
interwoven with the law of access to public records
generally. As Nixon indicates, there was a long
history of state court decisions that distinguished the
American common law of court-record access from the English.
Id. While the English rule with its
"qualified right of access . . . protected the
favored position of the King in the courts [,
]" America had no king. As the leading
state court case of that day said, "If there be any rule
of the English common law that denies the public the right of
access to public records, it is repugnant to the spirit of
our democratic institutions. Ours is a government of the
people. Every citizen rules." Nowack v. Fuller,
219 N.W. 749, 750 (Mich. 1928) (cited in Nixon, 435
U.S. at 597 n.7, 98 S.Ct. at 1312).
freer, more open, democracy-based, American approach to
court-record access is well reflected in Kentucky's
jurisprudence. For example, well before Martin and
Nowack, and before First Amendment access to public
records could be claimed in state courts, 
Kentucky's highest court declared that "[t]he
general interests of society in many important particulars
depend most nearly upon the preservation of the purity and
verity of our public records." Snodgrass v.
Adams, 30 Ky. (7 J.J. Marsh) 165, 166 (1832). The Court
expressed a similar liberality regarding access to those
records, stating that a document "recorded in the office
of the County Court . . . is open to the inspection of all
who think proper to examine the public records . . . ."
Haskell v. Bakewell, 49 Ky. (10 B. Mon.) 206, 209
(1850). The same broad access approach applied to settlements
which "were adjudications of an indebtedness . . .,
spread on the public records, to be sent [sic] and read by
all who would take the trouble to examine them."
Rutherford's Heirs v. Clark's Heirs, 6 Ky.
Op. 326, 328, 1873 WL 11091, at *2 (1873) (estate
Kentucky records custodians tried but failed to have Kentucky
courts adopt the more restrictive English rule. In
Barrickman v. Lyman, the Court said it was
"unnecessary in this case" to adopt the English
rule because, even if it applied, "plaintiff [wa]s not
only a citizen and taxpayer, but ha[d] shown an interest in
the records in question." 154 Ky. 630, 157 S.W. 924, 926
(1913). The next mention in our jurisprudence of the English
rule appeared in the case Nixon cited, Fayette
County v. Martin.
jurisprudence was already decidedly against restrictions to
court-record access when Martin was rendered. Two
years before, the court had expressed the policy that
"it is of vast importance to the public that the
proceedings of courts of justice should be universally
known." Paducah Newspapers v. Bratcher, 274 Ky.
220, 118 S.W.2d 178, 179 (1937).
Martin identified the restrictive English rule, just
as Barrickman had, the rule was again irrelevant to
the decision. In Martin, certain
corporations were paying a state franchise tax to the
Kentucky Tax Commission. The Fayette County taxing authority
wanted access to Commission records to cross-check the
accuracy of its own tax assessments. Martin, 130
S.W.2d at 839. When the Tax Commissioner, James Martin,
declined the request for access, Fayette County filed a
petition for a writ of mandamus. Id. The petitioner
argued the records sought "are public records and . . .
[it] remained the common law right of plaintiffs or any
person, officer or agent of any public or private corporation
to inspect and examine the public tax records on file in the
office of the Kentucky Tax Commission." Id. at
County went further and said even if the English rule
applied, it would have access because its interest "is
such as would enable [it] to maintain or defend an action for
which the document or record sought can furnish evidence or
necessary information." Id. at 843 (quoting 23
Ruling Case Law (R.C.L.) § 10, page 160 (1919)). Because
the county had raised the issue of the English rule, the
Court discussed it, quoting more than one version and, after
"[c]onceding these to be proper statements of the
general [English] common law rule[, ]" id. at
843, found no further need to address it. The Court affirmed
the denial of the writ on the basis of a "statute [KS
4114i-13 (1939)] . . . expressly forbidding the divulging of
the information contained in these records to officers of
taxing districts other than Kentucky cities . . .
." Id. at 845 (emphasis added). Fayette
County was denied access based on the statute.
turns out, two decades later, in Courier-Journal &
Louisville Times v. Curtis, our highest court would
misinterpret Martin. 335 S.W.2d 934 (Ky. 1959),
overruled by City of St. Matthews v. Voice of St.
Matthews, Inc., 519 S.W.2d 811 (Ky. 1974). However,
misinterpretation was a blessing in disguise. Without that
deviance, subsequent Kentucky jurisprudence might not have
stated our policy of broad court-record access with the same
resoluteness or clarity.
v. Curtis was a strongly split decision whether the
press was entitled to a transcript of a defendant's
statement made after the press was excluded from the
courtroom. Id. at 935. The majority erroneously
stated, "We recognized and adopted this [English common
law] rule [of court-record access] in the case of Fayette
County v. Martin. . . . 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 . . . ." Id. at
936-37. Judge Milliken concurred in result only stating,
"I feel strongly that this was a matter to be determined
by the judge in his discretion." Id. at 938
(Milliken, J., concurring in result only). Judge Stewart
wrote an even stronger dissent in which Judge Moremen joined.
Stewart said denying press access to a transcribed statement
by a criminal defendant was wrong even though
"buttress[ed] . . . by directing attention to this . . .
very ancient common-law rule which appears in
Fayette County v. Martin[.]"
Id. at 939 (Stewart, J., dissenting) (citation
omitted). He correctly pointed out that the Court in
Martin "had no occasion to, and did not
determine, what right of inspection a member of the public
had . . . . [T]he common-law rule as regards the right to
inspect public records, was never applied to the factual
issues raised because a statute prohibited the right so
asserted by Fayette County." Id. at 940.
Calling the restrictive English rule "antiquated[,
]" he laid out what he and Judge Moremen
"believe[d] should be considered the law of this
Commonwealth, since it is the weight of authority on the
right to inspect public records:
The English common-law rule . . . has not been generally
observed in this country. . . . That common interest which
every citizen has in the enforcement of the laws and
ordinances of the community wherein he dwells has been held
to entitle a citizen to the right to inspect the public
records in order to ascertain whether the provisions of the
law have been observed.
Id. (quoting 45 Am. Jur., Records and Recording
Laws, § 18, p. 428). Fifteen years later, our high
court reversed Curtis in a decision that can be
traced directly to Judge Stewart's dissent. City of
St. Matthews, 519 S.W.2d at 813.
1974, our highest court reversed Curtis in City
of St. Matthews, stating: "We do not construe our
holding in Fayette County v. Martin, supra, as adopting the
[English] common-law rule. . . . To the extent . . .
Martin . . . and . . . Curtis . . . imposed
this requirement, they are overruled." 519 S.W.2d at
813, 815. The Court said, "We cannot find any valid
basis in our society for the imposition of the
requirement of the interest stated in the [English]
common-law rule as a prerequisite to the right to inspect
public records." Id. at 815 (emphasis added).
Sounding like Henry Clay generations earlier, the Court said
a "rule originated under a monarchic form of government
in which the people were subjects of the Crown . . . is
likely to be ill-suited for application in a democratic
society . . . ." Id.
In a democratically constituted society every citizen and
taxpayer has an interest in the manner in which the
government is operated. The records reflecting that operation
are many and varied. Where such records concern matters of
primarily public interest, the public is entitled to see
them. If it were otherwise, how could the citizenry determine
whether public officials are properly fulfilling the
functions of their office as required by law? The public
business is indeed the public's business.
Id. at 815-16 (citation, internal quotation marks
and parentheses omitted).
City of St. Matthews was rendered in 1974, there was
no legislation addressing access to Kentucky state government
records generally. The Court took the rare step of filling
that void, stating:
Ordinarily we look to the General Assembly, as the most
direct representatives of the people, to establish public
policy in matters such as this but, except in limited areas,
the General Assembly has not legislated precisely upon this
subject. In these circumstances it is entirely proper and
strictly in keeping with the ancient tradition of the common
law for the courts to provide a policy when necessity demands
Id. at 814. The Court then proceeded to articulate
clear rules for accessing government records of all three
branches of government, as follows:
(1) The inspection shall be conducted at reasonable times and
places and in such a manner as not to unduly interfere with
the proper operation of the office of the custodian of the
(2) The records sought to be inspected are not exempt from
inspection by law.
(3) The disclosure of the information would not be
detrimental to the public interest or violative of
confidentiality under a countervailing public policy
[entitled] to greater weight than the policy favoring free
access to public records.
 When a demand for the inspection of public records is
refused by the custodian of the record, the burden shall be
upon the custodian to justify the refusal of inspection with
 A newspaper has the same right to inspect public records
as a member of ...