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Harilson v. Lexington H-L Services, Inc.

Court of Appeals of Kentucky

November 22, 2019

BECKY HARILSON, IN HER OFFICIAL CAPACITY AS ACTING CO-DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION; DAVID FLOYD, IN HIS OFFICIAL CAPACITY AS ACTING CO-DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION; AND DAVID BYERMAN, IN HIS OFFICIAL CAPACITY AS FORMER DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION APPELLANTS
v.
LEXINGTON H-L SERVICES, INC., D/B/A LEXINGTON HERALD-LEADER APPELLEE

          APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 18-CI-00512

          BRIEFS AND ORAL ARGUMENT FOR APPELLANTS: Gregory A. Woosley Legislative Research Commission

          BRIEF FOR APPELLEE: Thomas W. Miller Elizabeth Woodford

          ORAL ARGUMENT FOR APPELLEE: Thomas W. Miller

          BEFORE: KRAMER, MAZE AND L. THOMPSON, JUDGES.

          OPINION

          THOMPSON, L., JUDGE.

         Becky Harilson, et al., (hereinafter "Appellants") appeal from an order of the Franklin Circuit Court denying their motion to dismiss the action of Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader ("Appellee") for public records. The requested records related to a complaint by a Legislative Research Commission ("LRC") staff member against a member of the Kentucky General Assembly. Appellants argue that the Franklin Circuit Court improperly failed to conclude that legislative immunity applies to shield disclosure of the requested records, and that legislative immunity was not waived. For the reasons addressed below, we find no error and AFFIRM the order on appeal.

         Facts and Procedural History

         The facts are not in controversy. On March 9, 2018, Appellee, through its employee Daniel Descrochers, sent an open records request to the Records Custodian of the LRC. Descrochers sought records of a complaint made by an LRC staffer against Rep. Jim Stewart III on February 5, 2015, along with records of any meetings held with Stewart on February 9, 2015, and any agreement stating that Stewart was to have no contact with the staffer.

         On March 14, 2018, LRC General Counsel Greg Woosley denied the open records request based on Kentucky Revised Statute ("KRS") 61.878(1)(a), (h), (i) and (j), and Section 43 of the Kentucky Constitution. Specifically, the LRC claimed that the records were not subject to release because they would constitute an unwarranted invasion of privacy, would constitute a premature disclosure of an internal investigation, and would improperly disclose preliminary drafts, notes and recommendations. About two weeks later, Appellee sent a second request to Woosley stating that in response to the issue of invasion of privacy, it would accept redacted documents concealing the name of the staffer. The LRC did not respond to this request.

         Appellee sent another letter to the LRC on April 12, 2018, asking it to review the denial of the first request and lack of response to the second request. After no response was received, Appellee filed a complaint on May 14, 2019, with the Franklin Circuit Court pursuant to KRS 7.119(3).[1] On that same day, the LRC issued a decision affirming then-Director David Byerman's decision denying disclosure of the requested records.

         The matter proceeded in Franklin Circuit Court, whereupon Appellant Byerman filed a motion to dismiss. Byerman asserted the defense of legislative immunity under Section 43 of the Kentucky Constitution and the common law, as well as additional bases for the dismissal. Byerman argued that Appellee's complaint alleged that any requested records were gathered during a session of the General Assembly and in furtherance of a legislative branch investigation into a legislator's conduct pursuant to Section 39 of the Kentucky Constitution. Further, Byerman maintained that KRS 7.119(3) did not operate as an express waiver of legislative immunity.

         A hearing on the motion was conducted on August 22, 2018. On November 13, 2018, the Franklin Circuit Court entered an order denying the motion to dismiss. Judge Shepherd determined that the requested records did not fall within the narrowly defined legislative immunity afforded the General Assembly during the process of considering, passing or rejecting legislation. The circuit court also ruled that though legislative immunity might shield the LRC from judicial scrutiny, the General Assembly expressly waived its immunity by enacting KRS 7.119(3), KRS 61.880 and KRS 61.882. This appeal followed.

         Arguments ...


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