RENDERED: SEPTEMBER 26, 2019

TO BE PUBLISHED

2019-SC-000156-MR

[

BECKY HARILSON, IN HER OFFICIAL APPELLANTS

CAPACITY AS ACTING CO-DIRECTOR OF

THE KENTUCKY LEGISLATIVE RESEARCH

COMMISSION AND DAVID FLOYD, IN HIS

OFFICIAL CAPACITY AS ACTING CO

DIRECTOR OF THE KENTUCKY

LEGISLATIVE RESEARCH COMMISSION

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 201 8-CA-00 1 749-OA

FRANKLIN CIRCUIT COURT NO. 18-CI-00512

HON. PHILLIP J. SHEPHERD, JUDGE, APPELLEE

FRANKLIN CIRCUIT COURT

AND

LEXINGTON H-L SERVICES, INC., D/B/A

LEXINGTON HERALD-LEADER REAL PARTY IN INTEREST



### OPINION OF 

### THE COURT BY 

### JUSTICE HUGHES



### AFFIRMING

Appellants Becky Harilson and David Floyd, in their official capacities as

Acting Co-Directors o f the Kentucky Legislative Research Commission (LRC), 1

1 The LRC is an independent agency in the legislative branch of state

government, composed of sixteen members of the leadership in the Kentucky Senate

and House of Representatives. Kentucky Revised Statute (KRS) 7.090(1),(2). David

Byerman was LRC ’ s Director when this action started. Byerman filed a motion to

dismiss. Becky Harilson and David Floyd became Acting Co-Directors prior to the

circuit court ’ s November 2018 denial of Byerman ’ s motion.seek a writ of prohibition preventing the Franklin Circuit Court from

adjudicating an action filed by Lex H-L Services, Inc., d/b/a/ Lexington

Herald-Leader (the Herald-Leader). In the underlying action, the Herald-Leader

sought judicial review of LRC ’ s determination that certain records requested by

the Herald-Leader are not subject to disclosure under Kentucky ’ s Open

Records Act (ORA or Act). LRC contends that the General Assembly has not

granted the circuit court subject-matter jurisdiction to hear the merits of the

Herald-Leader ’ s claims, and furthermore the circuit court ’ s exercise of

jurisdiction violates the separation of powers doctrine. The Court of Appeals

concluded the Franklin Circuit Court has jurisdiction in this matter and denied

the writ. For the reasons stated below, we affirm.



### FACTUAL 

### AND PROCEDURAL 

### BACKGROUND

Following up on a news lead that an LRC employee had filed a complaint

against Kentucky Representative Jim Stewart III alleging sexual harassment, a

Herald-Leader reporter filed an open records request with then LRC Director

David Byerman. The request, dated March 9, 2018, was for 1) records of a

complaint filed against Stewart on or around February 6, 2015; 2) records of

meetings held with Stewart on or around February 9, 2015; and 3) a copy of

any agreement that said Stewart was not to have any contact with an LRC

staffer. LRC ’ s General Counsel responded to the request on March 14, 2018,

stating that if records relating to the request were to exist, they were exempt

2from disclosure under KRS 61.878(l)(a), (h), (i), and (j); 2 Section 43 of the

Kentucky Constitution; and attorney-client privilege and attorney work product

doctrine.

On March 26, 2018, the Herald-Leader sent a letter asking LRC to

reconsider the prior response, specifically noting that records redacting the

LRC staffer ’ s identifying information pursuant to KRS 61.878(l)(a) ’ s personal

privacy exemption would be accepted. LRC did not respond to this letter. On

April 12, 2018, the Herald-Leader made its request under KRS 7.119(3) for LRC

to review Director Byerman ’ s denial of the Herald-Leader ’ s request for

documents. On May 14, 2018, LRC issued a decision affirming the Director ’ s

denial of the requested records. 3 On the same day, the Herald-Leader filed its

complaint in Franklin Circuit Court challenging the Director ’ s denial. After

receiving LRC ’ s decision, the Herald-Leader filed its amended complaint

seeking review of that decision.

Director Byerman moved the circuit court to dismiss the action for lack

of subject-matter jurisdiction. After that court denied the motion, LRC

petitioned the Court of Appeals for a writ prohibiting the circuit court from

2 LRC ’ s response summarized its reasons for denying the requested records

under KRS 6 1.878(l)(a), (h), (i), and (j) as they “ would involve records containing

information of a personal nature where the public disclosure thereof would constitute

a clearly unwarranted invasion of personal privacy, and/or the records would

constitute preliminary drafts, notes, or correspondence with private individuals,

and/or preliminary memoranda, and/or the records would be involved in

administrative actions. ”

3 LRC also cited Section 39 of the Kentucky Constitution as further grounds for

denying the request.

3proceeding without the requisite subject-matter jurisdiction. The Court of

Appeals denied the petition, and this appeal followed. 4 Kentucky Rule of Civil

Procedure (CR) 76.36(7).



### ANALYSIS

A writ is an extraordinary remedy, cautiously and conservatively granted.

Bender v. Eaton, 343 S.W. 2d 799, 800 (Ky. 1961). A writ of prohibition may

issue when a lower court is acting on matters not within its subject-matter

jurisdiction. Goldstein v. Feeley, 299 S.W. 3d 549, 551-52 (Ky. 2009). “ One

seeking a writ when the lower court is acting ‘ outside of its jurisdiction ’ (the socalled first class of writ cases) need not establish the lack of an adequate

alternative remedy or the suffering of great injustice and irreparable injury.

Those preconditions apply only [in the second class of writ] when a lower court

acts ‘ erroneously but within its jurisdiction. ” * Id. at 552. “ The court has

subject matter jurisdiction when the ‘ kind of case ’ identified in the pleadings is

one which the court has been empowered, by statute or constitutional

provision, to adjudicate. ” Daugherty v. Telek, 366 S.W. 3d 463, 467 (Ky. 2012)

(citation omitted).

The lower court ’ s grant or denial of a writ of prohibition is generally

reviewed for an abuse of discretion. Southern Fin. Life Ins. Co. v. Combs, 413

S.W. 3d 921, 926 (Ky. 2013) (citation omitted). However, when a question of

4 LRC presented to the circuit court two other reasons this action should be

dismissed

— defective service of process and legislative immunity. These issues are

not before this Court. As to the legislative immunity claim, LRC filed a separate

appeal from the circuit court ’ s order denying its motion to dismiss.

4law is involved, we review that question de novo. Id.', Grange Mut. Ins. Co. v.

Tru.de

, 151 S.W.3d 803, 810 (Ky. 2004) ( “ De novo review will occur most often

under the first class of writ cases, i.e., where the lower court is alleged to be

acting outside its jurisdiction, because jurisdiction is generally only a question

of law. ” ).

LRC presents two arguments. First, it contends that the circuit court

lacks subject-matter jurisdiction because the General Assembly has not

bestowed such jurisdiction under KRS 7.119(3). Second, it insists that the

courts generally lack jurisdiction based on the separation of powers doctrine.

The Court of Appeals, addressing only the first argument, denied the writ

because it concluded the circuit court properly exercised subject-matter

jurisdiction under the relevant statutes. We begin by considering the statutory

scheme. 5



### I. Franklin 

### Circuit Court Has 

### Subject-Matter 

### Jurisdiction Under

KRS 

### 7.119

In Board of

Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2

(Ky. 1978), this Court stated:

There is no appeal to the courts from an action of an

administrative agency as a matter of right. When grace to appeal

is granted by statute, a strict compliance with its terms is required.

Where the conditions for the exercise of power by a court are not

met, the judicial power is not lawfully invoked. That is to say, that

the court lacks jurisdiction or has no right to decide the

controversy.

5 LRC also presents the argument that KRS 7.119 is a set of waivable

procedural rules. Because this argument was not presented to the Court of Appeals,

we decline to address it on appeal. See Henderson v. Commonwealth, 438 S.W.3d 335,

343 (Ky. 2014).

5Relying on Flood, LRC claims that the plain language of KRS 7.119 does not

grant the circuit court jurisdiction to hear the Herald-Leader ’ s claims. In

short, LRC maintains that judicial review of open records requests addressed to

the LRC Director is authorized only if LRC fails to act on an appeal from the

Director ’ s decision. In LRC ’ s view, if it acts, either affirming or reversing its

Director, the matter is closed, with no resort to the courts available.

Turning to the statute, KRS 7.119(3) provides for the inspection of

legislative records by the public. It states in full:

Requests for records or other documents in the custody of

the Legislative Research Commission or the General Assembly

shall be directed to the director of the Legislative Research

Commission. Except for KRS 61.880(3), I 6 ] provisions of the Open

Records Act, KRS 61.870 to 61.884, [7] shall apply to a request for

6 KRS 61.880(3) states:

Each agency shall notify the Attorney General of any actions filed

against that agency in Circuit Court regarding the enforcement of KRS

61.870 to 61.884. The Attorney General shall not, however, be named as

a party in any Circuit Court actions regarding the enforcement of KRS

61.870 to 61.884, nor shall he have any duty to defend his decision in

Circuit Court or any subsequent proceedings.

7 The twelve statutes within the Act and their titles are 1) KRS 61.870:

Definitions for KRS 61.870 to 61.884; 2) KRS 61.871: Policy of KRS 61.870 to 61.884;

Strict Construction of Exceptions of KRS 61.878; 3) KRS 61.8715: Legislative

Findings; 4) KRS 61.872: Right to Inspection; Limitation; 5) KRS 61.874: Abstracts,

Memoranda, Copies; Agency May Prescribe Fee; Use of Nonexempt Public Records for

Commercial Purposes; Online Access; 6) KRS 61.8745: Damages Recoverable by

Public Agency for Person ’ s Misuse of Public Records; 7) KRS 61.8746: Commercial Use

of Booking Photographs or Official Inmate Photographs Prohibited; Conditions; Right

of Action; Damages; 8) KRS 61.876: Agency to Adopt Rules and Regulations; 9) KRS

61.878: Certain Public Records Exempted from Inspection Except on Order of Court;

Restriction of State Employees to Inspect Personnel Files Prohibited; 10) KRS 61.880:

Denial of Inspection; Role of Attorney General; 11) KRS 61.882: Jurisdiction of Circuit

Court in Action Seeking Right of Inspection; Burden of Proof; Costs; Attorney Fees;

and 12) KRS 61.884: Person ’ s Access to Record Relating to Him.

6inspection or copies of documents or other items not set forth in

subsection (2) of this section, [ 8 ] and except that a request for a

review under KRS 61.880 of any determination by the director

shall be made to the Legislative Research Commission, which shall

issue its decision within thirty (30) days. If the Legislative

Research Commission does not issue its decision on a review of the

director ’ s determination within thirty (30) days of submission to it

of the matter, the director ’ s determination may be appealed to the

Franklin Circuit Court within sixty (60) days of its issuance. For

purposes of this subsection, any reference to the Attorney General

in KRS 61.880 and 61.882 shall be read as the Legislative

Research Commission.

LRC interprets KRS 7.119(3) to mean that the cross-referenced ORA

provisions (KRS 61.870 to 61.884 excepting KRS 61.880(3)) apply to the

mechanics for handling a request for inspection, but not to a request for

review. LRC views the introductory phrase “ and except that a request for a

review under KRS 61.880 of any determination by the director shall be made to

the Legislative Research Commission, ” as replacing the entirety of KRS 61.880

and providing a more specific review process applicable to legislative branch

records requests. The process it advocates limits review of the LRC Director ’ s

decision to the LRC itself. LRC further contends that KRS 7.1 19(3) ’ s plain

language limits an appeal to the circuit court to only those cases where LRC

8 KRS 7.119(2) states:

As used in subsection (1) of this section, “ records ” includes bills and

amendments introduced in the Senate or House of Representatives,

Senate and House Journals, Acts of the General Assembly, roll call votes,

final reports of committees, Kentucky Administrative Regulations,

documents showing salary and expenses paid to members of the General

Assembly and all employees of the legislative branch, contracts, receipts

and work orders for repairs or renovations to legislative offices or

facilities, items cataloged in the legislative library, the Legislative Record,

and informational and educational materials offered by the public

information office, including legislative videotapes and photographs,

calendars, and meeting notices.

7fails to act within thirty (30) days on a matter submitted for review. Because

LRC ’ s decision affirming the Director ’ s denial was issued within thirty days of

the Herald-Leader ’ s request for its review, LRC insists its decision is not

subject to review in the circuit court.

The Herald-Leader counters that if the General Assembly intended to

incorporate the ORA into KRS 7.119(3) only as to requests for records, it would

not have incorporated KRS 61.880(1), (2), (4), and (5)

— all provisions for

enforcing a person ’ s right to inspect records

— or KRS 61.882, which expressly

grants circuit court jurisdiction over ORA disputes. According to LRC,

however, the General Assembly ’ s use of the ORA statutory range, minus one

exception, is a shorthand method for incorporation of the contextually relevant

portions of the ORA.

Rules of statutory construction are used to give effect to the intent of the

General Assembly. Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010)

( “ Discerning and effectuating the legislative intent is the first and cardinal rule

of statutory construction. ” ); KRS 446.080(1) ( “ All statutes of this state shall be

liberally construed with a view to promote their objects and carry out the intent

of the legislature

.... ” ). That intent is derived from the plain reading of the

statute ’ s language unless the language is ambiguous. Commonwealth v.

Plowman, 86 S.W.3d 47, 49 (Ky. 2002). Furthermore, “ [t]he statute must be

read as a whole and in context with other parts of the law. All parts of the

statute must be given equal effect so that no part of the statute will become

8meaningless or ineffectual. ” Lewis v. Jackson Energy Co-op. Corp., 189 S.W. 3d

87, 92 (Ky. 2005).

Applying these fundamental statutory construction principles, we find as

a matter of law that the Franklin Circuit Court has subject-matter jurisdiction

to review the LRC ’ s open records request decision. With KRS 7.1 19(3) ’ s

virtually wholesale incorporation of the ORA statutes, we find it beneficial to

briefly examine the purpose of the Open Records Act and the review process

prescribed when a public agency denies an ORA request before turning to the

specifics of KRS 7.119(3).

In 1992, the General Assembly declared the policy of the Open Records

Act relating to public agencies generally, KRS 61.870 to 61.884, “ is that free

and open examination of public records is in the public interest and the

exceptions provided for by KRS 61.878 or otherwise provided by law shall be

strictly construed, even though such examination may cause inconvenience or

embarrassment to public officials or others. ” KRS 61.871.

KRS 61.880 and KRS 61.882 are the two statutes within the Open

Records Act which detail how enforcement of the Act shall proceed. KRS

61.880(2)(a) sets forth the procedure by which a complaining party may

request the Attorney General to review an agency ’ s denial of an individual ’ s

records request, and unless unusual circumstances as defined in KRS

61.880(2)(b) are present, the twenty (20) day time frame by which the Attorney

General must issue a written decision. Pursuant to KRS 61.880(5)(a), a “ party

shall have thirty (30) days from the day that the Attorney General renders his

9decision to appeal the decision. ” KRS 61.880(5)(a) also states that an “ appeal

within the thirty (30) day time limit shall be treated as if it were an action

brought under KRS 61.882. ” KRS 61.882(1) confers jurisdiction for

enforcement of KRS 61.870 to 61.884 upon “ [t]he Circuit Court of the county

where the public agency has its principal place of business or the Circuit Court

of the county where the public record is maintained. ” Under this statute, a

person alleging an ORA violation can go immediately to court without first

seeking review by the Attorney General. KRS 61.882(2).

Enacted in 2003, KRS 7.119(3) details the manner in which a person

may inspect records in the custody of the LRC or the General Assembly. We

construe the statute by considering the plain meaning of each sentence in

relation to the whole section.

The second sentence of KRS 7.119(3) states:

Except for KRS 61.880(3), provisions of the Open Records Act, KRS

61.870 to 61.884, shall apply to a request for inspection or copies

of documents or other items not set forth in subsection (2) of this

section, and except that a request for a review under KRS 61.880

of any determination by the director shall be made to the

Legislative Research Commission, which shall issue its decision

within thirty (30) days.

Significantly, KRS 7.119(3) expressly provides that all twelve of the ORA

statutes, except a specific subsection of the enforcement statute

— KRS

61.880(3)

— shall apply to a request for inspection or copies of legislative

records. In accordance with KRS 7.119(3) designating LRC, rather than the

Attorney General, as the reviewing body for the LRC Director ’ s denial of a

records request, the General Assembly removed what would have been KRS

1061.880(3) ’ s incongruent requirement that “ [e]ach agency shall notify the

Attorney General [(even though he shall not be named as a party in, or have a

duty to defend his decisions, in any ORA enforcement actions in circuit court)]

of any actions filed against that agency in Circuit Court regarding the

enforcement of KRS 61.870 to 61.884. ” Since LRC steps into the Attorney

General ’ s shoes for purposes of reviewing requests for legislative documents,

eliminating KRS 61.880(3) is logical.

Unlike the KRS 61.880(3) exception, however, no plain language in KRS

7.119(3) excepts any other ORA statutory section in its entirety. KRS 7.119(3)

does provide two differences with a request for review under KRS 61.880 by

stating that “ except that a request for a review under KRS 61.880 of any

determination by the director shall be made to the Legislative Research

Commission, which shall issue its decision within thirty (30) days. ” As noted

supra, KRS 61.880(2)(a) allows the Attorney General to review an agency ’ s

denial of records and to render a decision within twenty (20) days, excepting

Saturdays, Sundays and legal holidays. In contrast, KRS 7.119(3) states that a

request for a review of any determination by the LRC Director shall be made to

the LRC and provides that the LRC shall issue its decision within thirty (30)

days. These differences between KRS 61.880(2)(a) and KRS 7.119(3) do not

negate the right to judicial review under KRS 61.880(5)(a) and KRS 61.882(1),

provisions expressly incorporated into KRS 7.119(3).

KRS 7.119(3) next states:

If the Legislative Research Commission does not issue its decision

on a review of the director ’ s determination within thirty (30) days of

11submission to it of the matter, the director ’ s determination may be

appealed to the Franklin Circuit Court within sixty (60) days of its

issuance.

This sentence provides instruction for handling situations when

the LRC does not issue a timely decision after receiving a request to

review the Director ’ s determination. Again, it does not except the right to

appeal a denial to the circuit court as provided in KRS 61.880 and KRS

61.882, statutes expressly incorporated into the legislative open records

process, with the sole exception of KRS 61.880(3). Furthermore, KRS

7.119(3) specifically references and provides further direction for

application of these two statutes in the next and final sentence.

KRS 7.1 19(3) ’ s last sentence is:

For purposes of this subsection, any reference to the Attorney

General in KRS 61.880 and 61.882 shall be read as the Legislative

Research Commission.

KRS 61.880(2)(a), (5)(a), and (5)(b) provide text relevant to the review

process at issue here. Following KRS 7.1 19(3) ’ s directive to substitute any

reference to the “ Attorney General ” within KRS 61.880 with the “ Legislative

Research Commission, ” these provisions read as follows:

If a complaining party wishes the [Legislative Research

Commission] to review a public agency ’ s denial of a request to

inspect a public record, the complaining party shall forward to the

[Legislative Research Commission] a copy of the written request

and a copy of the written response denying inspection. If the

public agency refuses to provide 

### a written response, a complaining

party shall provide a copy of the written request. The [Legislative

Research Commission] shall review the request and denial and

issue within twenty (20) days, excepting Saturdays, Sundays and

12legal holidays, a written decision stating whether the agency

violated provisions of KRS 61.870 to 61.884. 9

KRS 61.880(2) (a).

A party shall have thirty (30) days from the day that the

[Legislative Research Commission] renders [its] decision to appeal

the decision. An appeal within the thirty (30) day time limit shall

be treated as if it were an action brought under KRS 61.882.

KRS 61.880(5) (a).

If an appeal is not filed within the thirty (30) day time limit, the

[Legislative Research Commission ’ s] decision shall have the force

and effect of law and shall be enforceable in the Circuit Court of

the county where the public agency has its principal place of

business or the Circuit Court of the county where the public record

is maintained.

KRS 61.880(5)(b).

As noted supra, KRS 61.882 is the statute which provides the circuit

court with jurisdiction to resolve ORA inspection disputes. KRS 61.882(1).

Within this statute, the only reference to the Attorney General is within

subsection (3). Making the substitutions directed by KRS 7.119(3), it reads:

In an appeal of [the Legislative Research Commission ’ s] decision,

where the appeal is properly filed pursuant to KRS 61.880(5)(a),

the court shall determine the matter de novo. In an original action

or an appeal of [the Legislative Research Commission ’ s] decision,

where the appeal is properly filed pursuant to KRS 61.880(5)(a),

the burden of proof shall be on the public agency. The court on its

own motion, or on motion of either of the parties, may view the

records in controversy in camera before reaching a decision. Any

noncompliance with the order of the court may be punished as

contempt of court.

KRS 61.882(3). 10

9 As stated in KRS 7.119(3), the Legislative Research Commission has thirty

(30) days to issue its decision.

10 KRS 61.882 ’ s other subsections state in full:

13In summary, the plain language of KRS 7.119(3) expressly incorporates

all of the Open Records Act statutes except KRS 61.880(3); provides that the

LRC (rather than the Attorney General) is the reviewer of its Director ’ s

determination and allows the LRC thirty (30) days to issue its decision (in

contrast to the twenty (20) day limit imposed upon the Attorney General); and

provides that for purposes of KRS 61.880 and 61.882, the two ORA

enforcement statutes, any reference to the Attorney General must be read as a

reference to the Legislative Research Commission. After fully incorporating

into KRS 7.119(3) eleven ORA statutes in their entirety and all but subsection

(3) of KRS 61.880, without explicit exceptions or directions otherwise provided

(1) The Circuit Court of the county where the public agency has its

principal place of business or the Circuit Court of the county where the

public record is maintained shall have jurisdiction to enforce the

provisions of KRS 61.870 to 61.884, by injunction or other appropriate

order on application of any person.

(2) A person alleging a violation of the provisions of KRS 61.870 to

61.884 shall not have to exhaust his remedies under KRS 61.880 before

filing suit in a Circuit Court.

(4) Except as otherwise provided by law or rule of court, proceedings

arising under this section take precedence on the docket over all other

causes and shall be assigned for hearing and trial at the earliest

practicable date.

(5) Any person who prevails against any agency in any action in the

courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding

that the records were willfully withheld in violation of KRS 61.870 to

61.884, be awarded costs, including reasonable attorney ’ s fees, incurred

in connection with the legal action. If such person prevails in part, the

court may in its discretion award him costs or an appropriate portion

thereof. In addition, it shall be within the discretion of the court to award

the person an amount not to exceed twenty-five dollars ($25) for each day

that he was denied the right to inspect or copy said public record.

Attorney

’ s fees, costs, and awards under this subsection shall be paid by

the agency that the court determines is responsible for the violation.

14by the General Assembly, we cannot find that KRS 7.119(3) supports LRC ’ s

contention that the incorporated ORA statutes apply only as to the requests for

records and not requests for review. Nor can we conclude that judicial review

of an LRC decision is limited to when the LRC does not issue a decision within

thirty (30) days. Furthermore, our plain language statutory interpretation

rules do not allow a finding that the General Assembly incorporated the entire

ORA statutory range, minus one subsection, in KRS 7.119(3) merely to avoid

stilted drafting, a strategy which would also be noncompliant with the General

Assembly ’ s charge to enact legislation written in a clear and coherent manner.

See KRS 446.015. Simply put, the incorporation of KRS 61.870 to 61.884

(minus KRS 61.880(3)) has clear meaning, i.e., those statutes “ shall apply. ”

KRS 7.119(3). Additionally, the last sentence of KRS 7.119(3) plainly means

something and under the LRC ’ s theory of the review process it would be

rendered meaningless.

When construing a statute, our duty is to effectuate the intent of the

legislature, and that intent is derived from the statute ’ s language. Plowman,

86 S.W. 3d at 49. Since there is no ambiguity in KRS 7.119(3), it must be given

its effect as written. Griffin v. City of Bowling Green, 458 S.W. 2d 456, 457 (Ky.

1970) (citation omitted). In accordance with our rules of statutory

construction, we conclude that under KRS 7.119(3), the Franklin Circuit Court

15has subject-matter jurisdiction to adjudicate the underlying case arising from

the Herald-Leader ’ s legislative records request. 11



### II. 

### The 

### Trial Court Does 

### Not 

### Lack Jurisdiction 

### Based on 

### the

Separation of 

### Powers Doctrine

Kentucky

’ s Constitution establishes that the legislative, executive, and

judicial branches are separate, each having its own powers, Section 27

, and no

branch “ shall exercise any power properly belonging to either of the others,

except in the instances

. . . expressly directed or permitted, ” Section 28. LRC

contends the lower courts ’ interpretation of KRS 7.119(3) violates the

separation of powers doctrine and ignores the directly analogous circumstance

in Ex parte Farley, 570 S.W.2d 617 (Ky. 1978), a case in which the judicial

branch declared itself exempt from the entire ORA scheme.

In Farley, a public defender requested to inspect and copy records

being compiled by AOC (Administrative Office of the Courts) pursuant to

KRS 532.075(6)(c), 12 id. at 619, 621, records to be used by the Supreme

11 Because KRS 7.119(3) ’ s language is unambiguous, we need not and do not

address LRC ’ s legislative histo r y argument. Shawnee Telecom Res., Inc. v. Brown, 354

S.W.3d 542, 551 (Ky. 2011) (citation omitted) ( “ Only if the statute is ambiguous or

otherwise frustrates a plain reading, do we resort to extrinsic aids such as the

statute ’ s legislative history

. . . . ” ).

12 KRS 532.075(6) states:

The Chief Justice shall assign to an administrative assistant who is an

attorney the following duties:

(a) To accumulate the records of all felony offenses in which the death

penalty was imposed after January 1, 1970, or such earlier date as the

court may deem appropriate.

(b) To provide the court with whatever extracted information it desires

with respect thereto, including but not limited to a synopsis or brief of

the facts in the record concerning the crime and the defendant.

16Court to determine, upon review, “ [w]hether the sentence of death is

excessive or disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant, ” id. at 619. The Farley

Court addressed the work-in-process accumulated by AOC stating:

On its face, the Open Records Law, KRS 61.870-61.884, incl.

(Ch. 273, Acts of 1976), appears to apply. Whether its provisions

conflict with or are harmonious with KRS 26A.200-26A.220,l 13 l

incl. (Ch. 22, Acts of 1976 Ex.Sess.), we need not decide, because

we are firmly of the opinion that the custody and control of the

records generated by the courts in the course of their work are

inseparable from the judicial function itself, and are not subject to

statutory regulation.

Id. at 624. * 13 * * * 17

(c) To compile such data as are deemed by the Chief Justice to be

appropriate and relevant to the statutory questions concerning the

validity of the sentence.

13 KRS 26A.200 and KRS 26A.220, respectively, provide:

(1) All records, as defined in KRS 171.410(1), which are made by or

generated for or received by any agency of the Court of Justice, or by any

other court or agency or officer responsible to such court created under

the present Constitution, or a former Constitution, whether pursuant to

statute, regulation, court rule, or local ordinance shall be the property of

the Court of Justice and are subject to the control of the Supreme Court.

(2) The Supreme Court shall determine which records were generated,

made, or received by or for any court.

KRS 26A.200.

All public officers, public agencies, or other persons having custody,

control, or possession of court records by statute or otherwise shall be

subject to the direction of the Supreme Court with regard to such records

and no such officer, agency, or person shall fail to comply with any rule,

regulation, standard, procedure, or order issued by the Chief Justice or

his designee.

KRS 26A.220.

17Concentrating on the above-quoted sentence in which the Court states

that its judicial function must not be encroached upon by the function of the

legislative branch, LRC asserts that likewise the legislative branch cannot be

encroached upon by the judicial branch. LRC argues that “ ‘ the custody and

control of the records generated by the [Legislative Branch] in the course of [its]

work are inseparable from the [legislative] function itself, and are not subject to

[judicial] regulation, ’ except possibly in the narrow class of cases where the

LRC remains silent on a request for review of a Director ’ s decision. ”

We cannot agree that Farley supports a finding that the circuit court

lacks jurisdiction in matters such as this based on the separation of powers

doctrine. Farley (citing City of St. Matthews v. Voice of St. Matthews, Inc., 519

S.W.2d 811 (Ky. 1974)), 14 recognizes that the legislative branch has the

authority to establish policy regarding the disclosure of public records which

fall within its purview. 570 S.W.2d at 625. Furthermore, as pointed out by the

Farley Court, the General Assembly implicitly recognized the Court ’ s authority

over its own records with the passage of KRS Chapter 26A.200-26A.220, the

Court of Justice records statutes. 15 KRS 26A.200 particularly states that the

records generated for the Court of Justice are “ the property of the Court of

14 City of St. Matthews, 519 S.W.2d at 814, states: “ The extent to which

public records should be subject to inspection is a matter of public policy.

Ordinarily we look to the General Assembly, as the most direct representatives

of the people, to establish public policy in matters such as this

. . . . ”

15 The Kentucky Open Records Act became effective June 19, 1976. KRS

26A.200-26A.220, addressing Court of Justice records, became effective March 19,

1977.

18Justice and are subject to the control of the [Kentucky] Supreme Court. ” The

Farley Court made clear that “ with respect to records that belong to the courts

and are a part of their ongoing work, ” consistent with separation of powers

doctrine, the Court itself must articulate the public policy for disclosure of its

records. Id.

[W]ith respect to records that belong to the courts and are a part of

their ongoing work, the only conclusion consistent with the

constitutional right of control over their own records is that the

public policy must be articulated by the courts themselves. We do

not believe that this viewpoint represents any actual conflict with

the policy intended by the General Assembly itself. KRS 26A.200,

which was enacted at a later date than was the Open Records Law,

implicitly recognizes it. As a matter of fact, KRS 26A.200 was

drafted by AOC.

Id.

Undoubtedly, the legislative branch of government likewise has the

authority to establish the rules and policies pertaining to the public ’ s

inspection of their legislative records, including the review process when the

disclosure of requested records is denied. Indeed, the General Assembly has

spoken through KRS 7.119, wherein it states (through incorporation of KRS

61.871) that examination of records in the custody of the LRC or the General

Assembly is in the public interest, and establishes the rules and review process

for a records request. Now, a question is raised as to the proper interpretation

of that statute.

“ It is emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular cases, must of

necessity expound and interpret that rule.

. . . This is of the very essence of

19judicial duty. ” Marbury v. Madison, 5 U.S. 137, 177-78 (1803). “ It was long

ago settled that the interpretation of statutes is a proper judicial function

. . . . ”

Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 217

S.W. 2d 815, 822 (Ky. 1948). The writ action before us involves that

fundamental judicial function, interpretation of a controlling statute.

Interpretation of a statute detailing review of a legislative records request is in

no way an encroachment on the legislative function, it is a quintessentially

judicial function. 16

Finally, the primary question presented in this action is whether,

pursuant to KRS 7.119(3), the Franklin Circuit Court has subject-matter

jurisdiction over the underlying dispute. We conclude that it does, the

legislature having granted that court jurisdiction to review denial of ORA

requests, including those involving LRC. While LRC expounds upon Section 39

of the Kentucky Constitution, one of its grounds for denying disclosure of the

requested records, as presenting a nonjusticiable political question, that issue

is not properly before the Court in this writ action. In the exercise of its

statutorily-granted jurisdiction, the circuit court will consider LRC ’ s arguments

that the requested records are exempt from disclosure under the eight grounds

16 LRC compares the General Assembly ’ s adoption of KRS 7.119 and the

potential for Kentucky courts to decide through their opinions whether the legislative

branch must disclose records related to a constitutionally authorized investigation into

a member of the House of Representatives to this Court ’ s adoption of an open records

policy which prohibits disclosure of records relating to employee complaints,

investigations, or decisions. Although LRC appears to argue otherwise, the fact that

the General Assembly may have adopted different record disclosure rules than the

Court of Justice does not present a separation of powers issue.

20LRC cited when denying the records to the Herald-Leader, including Section

39.



### CONCLUSION

As a matter of law, the Franklin Circuit Court has subject-matter

jurisdiction over the underlying action filed by the Herald-Leader. The Court of

Appeals ’ denial of the writ is affirmed.

All sitting. Minton, C.J.; Buckingham, Lambert, VanMeter, and Wright,

JJ., concur. Keller, J., concurs in result only.

COUNSEL FOR APPELLANTS:

Gregory Allen Woosley

Legislative Research Commission

COUNSEL FOR REAL PARTY IN INTEREST:

Thomas W. Miller

Elizabeth C. Woodford

MILLER, GRIFFIN & MARKS, P.S.C.

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