RENDERED: SEPTEMBER 4, 2020; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2019

- CA

- 00 1 615

- M E

NATHANIEL PARISH APPELLANT

APPEAL FROM FAYETTE FAMILY COURT v. HONORABLE LIBBY G. MESSER , JUDGE ACTION NO. 1 9

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- 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 cam era video, a nd appeals the order- 2

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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 p arties w ere 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 Lexingt on , 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 . B ased o n the allegations, the police were equipped with body

- worn cameras to record their investigation

. No arrest was made.- 3

- On April 22, 2019, Ms. Petter filed for an IPO against Mr. Parish

. The family court entered an emergency , or temporary , IPO (“TIPO”) , a nd a hearing was scheduled for May 1, 2019. Because of the family court’s schedule, however, the hearing was continued for June 2 6 , 2019.

On May 8, 2019, Mr. Parish made an open records request (“ORR”) , pursuant to KRS 1 61. 8 70, et seq. , to the L PD 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

. W e will hereinafter refer to LPD as
LFUCG. On May 9, 2019, L FUCG responded and provided the publ ic report associated with the incident. However, citing KRS 61.878(1)(h), which exempts records of ongoing law enforcement investigations from disclosure , L FUCG 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 L FUCG 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 L FUCG also noted that Mr. Parish’s attorney failed to file an affidavit, pursuant to KRS 61.169(1)(d), to obtain the video.- 4

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to KRE 3 902 and CR 4 45

. According to the parties, Mr. Parish sent a subpoena duces tecum to L FUCG requesting the body camera video with the notice

. 5

On May 14, 2019, L FUCG responded to the subpoena via a letter to Mr. Parish’s counsel. L FUCG stated that it wa s 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
L FUCG to produce the body camera video. LFUCG filed a response asking the family court to deny Mr. Parish’s motion because M r. 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, t he family court held a hearing in which Mr. Parish and LFUCG argued their respective positions on t he production of the body camera video . Ms. Petter took no position on the matter.

On Ju ne 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 part ies dispute s its existence . The appellate record only contains the notice to take the deposition of the L FUCG R ecords C ustodian.- 5

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challenge the denial of an ORR is contained within the ORA and “ not through this unrelated c ivil action where LFUCG i s 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 A aron 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 argument s , 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 cam era video. LFUCG is a public agency subject to the ORA, which provides for the “free and open
examinati on of public records [

. ] ” KRS 61.871. LFUCG declined to produce the body cam era video under the “law enforcement exception,” which excludes from

6 The June 2 6 , 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 th e June date.- 6

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disclosure: “[r]ecords of law enforcement agencies

. . . that were compiled in the process of detecting and i nvestigating 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). W hen 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. T he 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 proce eding, 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 R ules of C ivil P rocedure . CR 1(2) ; Wolfe , supra . For discovery i n 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- 7

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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 attempte d 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 Corp oration 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 R ules of Civil Procedure. “Any other interpre tation 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. Stew art , 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).- 8

- W e 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 t he 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 practi ce 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 reque st.” 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 t o 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 camer a video. LFUCG’s attorney cited this same information during the May 29, 2019 hearing on the motion to compel.- 9

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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 ap peal 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

.

P ursuant 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, howe ver, 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 R ules of
C ivil P rocedure where b ody 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 as sume Mr. Par ish would have been able to view the video or his attorney would have been able to obtain a copy of the video.- 10

- LFUCG also makes a policy argument that Mr. Parish must follow the ORA to obtain the body camera video because, otherwi se, a subpoena could be used to gain sensitive information that is normally exempt under t he ORA

. However, the Rules of Civil Procedure also provide safeguards to protect the disclosure of sensitive information

. For instance, p ursuant 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 “m ay make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or exp ense [.] ” ( E mphasis 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, t he video could still be protected from public disclosure. See Courier

- Journal, Inc. v. McDonald

- Burkman , 298 S.W.3d 846,
84 8

- 4 9 (Ky. 2009) (holding a court mus t balance its own inherent right to control access to public records produced in discovery with the pu blic’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- 11

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use the Rules of Civil Procedure to seek disco very from a party or nonparty, like LFUCG. Therefore, we conclude that the family court erred in failing to evaluate
the motion pursuant to the R ules of Civil Procedure

.

Nevertheless, we find this error to be harmless considering the evidence supportin g 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 possi bility that the result would have been any different [

. ] ” Rankin v. Commonwealth , 265 S.W.3d 227, 233 (Ky. App. 200 7 ) (citation omitted); s ee also McFall v. Peace , Inc. , 15 S.W.3d 724, 726 (Ky. 2000)

.

A court may enter a n IPO if, following the hearing, the court “finds by a preponderance of the evidence that d ating violence and abuse , sexual assault, or stalking ha s 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- 12

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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 t hat, 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 oppor tunity to be heard where the family court allows each party to present evidence and give sworn testimony before making its decision. Id.

U nder 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 all egation 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 testi mony before the family court and presented Mr. Mathias as a witness

. Both were subject to cross

- examination by Mr. Parish’s- 13

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counsel. Mr. Parish was given an opportunity to testify but declined. Even assuming that the body cam era 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

.

BRIEF S FOR APPELLANT: Sarah E

. Clay Lo uisville , Kentucky BRIEF FOR APPELLEE KAITLYNN PATRICE PETTER : Hunter Hickman Lexington , Kentucky
BRIEF FOR APPELLEE LEXINGTON

- FAYETTE URBAN COUNTY GOVERNMENT : Michael Sanner Brittany Griffin Smith Lexington, Kentucky