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Purdue Pharma L.P. v. Boston Globe Life Sciences Media, LLC

Court of Appeals of Kentucky

December 14, 2018



          BRIEFS FOR APPELLANTS: Daniel E. Danford Trevor W. Wells Lexington, Kentucky Bethany A. Breetz Louisville, Kentucky Pamela T. May Pikeville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE: Jon. L. Fleischaker Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANTS: Daniel E. Danford Lexington, Kentucky



          ACREE, JUDGE.

         Purdue 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.


         In 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.[1] 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.

         As part 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.

         In 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.

         The 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 CR[2] 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, [3] and it required that any motions or pleadings filed with the court containing or attaching confidential documents be filed under seal.

         Purdue produced over 17 million pages of documents, many of which were designated confidential.[4] 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.

         In 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.

         Additionally, 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).[5] A ruling on a second motion to compel[6] was abated. (R. 1654). The remaining motions to compel[7] were not ruled upon at all.

         In April 2014, the Commonwealth moved for partial summary judgment based, at least in part, on Purdue's failure to respond to requests for admission.[8] The court ruled that Purdue's failure to respond was an admission of the facts asserted in the requests.[9] Purdue asked the circuit court to allow withdrawal of the admissions pursuant to CR 36.02, [10] but the request was denied.

         Purdue 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, 2014).

         Before 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.[11] 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).

         The 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 settlement funds.

         Appellee 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 request.

         STAT 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 access.

         On May 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.


         A 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. Id.


         This 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).

         The 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)).

         Each jurisdiction has its own common law.[12] Each distinct body of common law evolved as each jurisdiction reacted to politics, [13] technology, [14] sociology, [15] geography, [16] and even history, [17] specific to that jurisdiction. The evolution of Kentucky common law is prototypical of this phenomenon.

         Early 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.[18]

         1) Kentucky's independent judiciary and independent jurisprudence

         It is 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 . . . ."[19] 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[20] 2418 (superseded by KRS[21] 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 state.").

         Since 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).

         Failing 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 says:

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) ("Amodeo II").

(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.

         A more 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 (1906).[22]

         Because 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.

         2) Kentucky's long-standing common law right of access to court records

         Purdue's 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.[23] We shall do so.

         The 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.

         The 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 Martin.

         The 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 1312.[24]

         Why would our nation's highest court turn first to a Kentucky case when it was neither the "leading case"[25] nor the earliest case on point?[26] 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. 1188 (1938).

         Swift "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.[27]

         A 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."[28]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., dissenting)).

         We 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.

         In 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).

         Keeping 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.

         When 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 [, ]"[29] 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).

         This 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, [30] 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 settlement).

         Occasionally, 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.

         Kentucky 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).

         Although Martin identified the restrictive English rule, just as Barrickman had, the rule was again irrelevant to the decision. In Martin, certain corporations[31] 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 841.

         Fayette 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.)[32] § 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.

         As it 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.

         Courier-Journal 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.

         Judge 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.

         In 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).

         When 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 it.

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 records.
(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.
[4] 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 specificity.
[5] A newspaper has the same right to inspect public records as a member of ...

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