On October 21, the Supreme Court of Kentucky overturned the denial of a taxpayer’s document request under Kentucky’s Open Records Law. Dep’t of Revenue v. Wyrick, Case No. 2008-SC-000468-DG (Ky. 2010). Wyrick, an attorney representing a newspaper company on a tax refund claim before the Board of Tax Appeals, sought numerous documents from the Department of Revenue through a pretrial discovery request. When the Board denied Wyrick’s pretrial discovery request, Wyrick requested many of the same documents from the Department under Kentucky’s Open Records Law. The Department denied most of the request, citing the civil litigation limit in Ky. Rev. Stat. Ann. § 61.878(1) (2010), which provides that “no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.”
The court required the Department to turn over the requested documents, holding that the Department must disclose public records unless a specific exception to the Open Records Law applies and the civil litigation limit is no such exception. Wyrick requires that the evaluation of public record requests occur without reference to ongoing or potential civil litigation. The court went on to hold that it may force disclosure where the Department denied a public records request, but the civil litigation limitation may limit the court’s power to grant disclosure if the document “pertain[s] to civil litigation.” The Department, however, remains unable to deny a document request on the grounds that it pertains to civil litigation, as this power is left to the courts.
Does Wyrick provide future taxpayer-litigants with a roadmap for enhanced pretrial discovery? Taxpayers should consider using open records requests in Kentucky in addition to pretrial discovery, especially if a specific exception is unlikely to apply. The Department may only reject requests that fall within a specific exception. Importantly, this puts the burden on the Department to convince the court that the civil litigation limit is applicable.