                                                    RENDERED : MARCH 18, 2010
                                                                            D

               ,$uyrrmr Courf of T,j
                      2009-SC-000018-MR

                                                      U
CENTRAL KENTUCKY NEWS-JOURNAL                                           APPELLANT



                    ON APPEAL FROM COURT OF APPEALS
V.                      CASE NO . 2008-CA-001605-OA
                   TAYLOR CIRCUIT COURT NO . 03-CI-00059



HON . DOUGHLAS M. GEORGE (JUDGE,
TAYLOR CIRCUIT COURT), ET AL.                                           APPELLEES



                OPINION OF THE COURT BY JUSTICE SCOTT

                                    REVERSING

      Central Kentucky News-Journal petitioned the Court of Appeals for a writ

of mandamus directing Honorable Doughlas M. George, Judge of the Taylor

Circuit Court, to grant it access to sealed copies of confidential settlement

agreements involving the Taylor County Board of Education, the Board of

Education of Campbellsville, and certain employees. The Court of Appeals

denied the writ and Central Kentucky News-Journal now appeals to this Court

as a matter of right. Ky. Const . § 115 ; CR 76.36(7) (a) . For reasons that follow,

we reverse the Order of the Court of Appeals .

                                  I . Background

      This appeal arises from the continuing efforts of Appellant, Central

Kentucky News-Journal, to gain access to two confidential settlement
agreements stemming from two separate lawsuits . Both suits were filed in

Taylor Circuit Court by Katherine Moss, a former employee of Campbellsville

High School and, at the time, a prospective employee of Taylor County High

School. Moss first brought an action against the Board of Education of the

Campbellsville Independent School District, its former Superintendent, Charles

Vaughan, in his official capacity, and the former Principal of Campbellsville

High School, Greg Chick, in both his official and individual capacities . Therein,

Moss alleged that she was the victim of sexual harassment. Moss later filed

suit against the Taylor County Board of Education, its Superintendent, Gary N .

Seaborne, in his official capacity, and the Principal of the Taylor County High

School, Gaylon Yarberry, in both his official and individual capacities . Therein,

Moss alleged that she was wrongfully refused employment .

       After extensive discovery, the parties participated in private mediation

involving both cases, and a settlement was reached.' In consideration of the

settlement, the parties agreed that its terms would remain confidential .

Thereafter, in an agreed order of dismissal, the Taylor County Circuit Court

Judge, Doughlas George, dismissed the Complaints, sealed the terms of the

dismissal and settlement, and ordered the parties to strictly adhere to the

confidentiality provisions contained in the agreements .

      Following these settlements, Appellant filed written requests under the

Kentucky Open Records Act with both school districts and sought "copies of

records with regard to the recent settlement" in each case. In response, both

1 The mediation was not ordered or overseen by the Taylor Circuit Court .
school districts declined to produce any such records, citing the orders of the

Taylor Circuit Court purporting to seal the terms of the dismissal and

settlement and its order for the parties to strictly adhere to the confidentiality

provisions contained in the agreements .

          In accordance with the Open Records Act, Appellant appealed to the

Kentucky Attorney General . In a subsequent Open Records Decision, 07-ORD-

110, the Attorney General opined that the settlement agreements were public

records for purposes of the Act and must be disclosed to the public upon

request unless they qualified for exclusion under one or more of the Act's

exceptions. Nevertheless, because the Taylor Circuit Court entered an order

sealing agreements and directing the parties to adhere to their confidentiality

provisions, the Attorney General concluded that its authority was limited and

the issue of public access to the agreements was one to be resolved by the

court .

          Thereafter, Appellant moved to intervene in both actions in the Taylor

Circuit Court so as to assert its right of access to the settlement agreements.

In addition, Appellant sought to have the trial court unseal the terms of the

agreements, vacate its orders regarding confidentiality, and to make any future

hearings related to the case open to the public and press. The trial court, in an

agreed order, consolidated the two cases in order to rule on Appellant's

motions . After reviewing the settlement agreements in camera, the trial court

denied Appellant's motion to intervene and held that it did not hold a strong
and legitimate interest in the terms of the agreements so as to warrant its

intervention .

       Seeking relief from that order, Appellant petitioned the Court of Appeals

for a writ of mandamus . The Court of Appeals granted the petition in part and

held that Courier-Journal and Louisville Times Co. v. Peers, 747 S .W.2d 1.25 (Ky.

 1988), established that Appellant, as a member of the news media, was entitled

to intervene and participate in a hearing on the underlying merits of its

claims .2 Accordingly, the Court of Appeals directed the trial court to vacate its

order denying Appellant's motion to intervene, to enter an order allowing it to

intervene, to address the remainder of its requested relief, and to file the

agreements into the record . For these reasons, the Court of Appeals concluded

that it would be premature to order the trial court to vacate its orders sealing

the agreements and directing the parties to adhere to their confidentiality

provisions .                                                                            .

       On remand, the trial court entered an order placing the agreements into

the record, asked the parties if they had further evidence to present on the

issue of whether the settlement agreements should be disclosed, and offered to

take additional sworn testimony at a hearing, if the parties desired. Appellant

advised the trial court that it had no additional evidence to present and

2 Because the trial court had previously conducted a hearing on the matter in
   conjunction with Appellant's motion to intervene, the Court of Appeals held that
   whether to conduct another hearing on remand would be within the trial court's
   discretion .
3 In spite of the trial court's order, the settlement agreements were not transmitted
   with the record on appeal. By this Court's own motion, the record has been
   properly supplemented with the agreements for our review.
 requested the court to rule on the record . The original parties filed affidavits

into the record, but objected to a further hearing. The trial court complied and

addressed the issue of whether the documents should be unsealed . The court

analyzed this Court's holding in Roman Catholic Diocese of Lexington v. Noble,

92 S .W.3d 724 (Ky. 2002) and the applicability of the Open Records Act's

privacy exemption before concluding that neither the First Amendment nor the

Open Records Act required the court to unseal the agreements for Appellant's

access .

       Appellant again petitioned the Court of Appeals for a writ of mandamus

that would direct the trial court to vacate its order and open the settlement

agreements and any related documents for public view. The Court of Appeals,

citing this Court's decision in Hoskins v. Maricle, 150 S.W .3d 1 (Ky . 2004),

denied the petition and, in a brief opinion, held that Appellant failed to show

that the trial court was acting outside its jurisdiction or acting erroneously. It

is from this order that Appellant now appeals as a matter of right pursuant to

CR 76 .36(7)(b) .

      On appeal, Appellant asks this Court to reverse the Order of the Court of

Appeals and order it to instruct the trial court to vacate its orders sealing the

terms of the settlement agreements. For the reasons that follow, we reverse the

Order of the Court of Appeals.

                           II. A propriateness of Writ

      As this Court has often stated, a writ of mandamus is an "extraordinary

remedy and [the Courts] have always been cautious and conservative both in
entertaining petitions for and in granting such relief." Grange Mut. Ins. Co. v.

Trude, 151 S .W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S .W.2d

799, 800 (Ky. 1961)) . Indeed, the circumstances justifying the grant of such a

writ are limited :

      A writ . . . may be granted upon a showing that (1) the lower court
      is proceeding or is about to proceed outside of its jurisdiction and
      there is no remedy through an application to an intermediate
      court; or (2) that the lower court is acting or is about to act
      erroneously, although within its jurisdiction, and there exists no
      adequate remedy by appeal or otherwise and great injustice and
      irreparable injury will result if the petition is not granted.

Hoskins, 150 S .W.3d at 10 (emphasis in original) . Here, Appellant's petition

did not challenge the trial court's jurisdiction, but rather claimed that the court

erroneously denied it access to the settlement agreement.

      In the usual case, Appellant would have to first demonstrate that it is

without an adequate remedy by appeal or otherwise and that great injustice

and irreparable injury would result without issuance of the writ before the

Court of Appeals would consider the merits of its claim. See Trude, 151 S .W.3d

at 808 . Yet, by virtue of this Court's holding in Peers, 747 S .W.2d at 128, "the

news media have been made an exception to the usual rules regarding

standing to . . . seek mandamus [or prohibition] where access is denied", as it

"represents exigent circumstances justifying coming directly to the appellate

courts for an extraordinary remedy." Id. at 129 ; see also Noble, 92 S .W.3d 729

("Once a media representative moves to intervene and requests a hearing, the

representative may attack an adverse ruling by petitioning the Court of Appeals

for a writ of mandamus or prohibition.") (citing Peers, 747 S .W.2d at 129) ; cf.
 Noble, 92 S .W.3d 729 ("But where there is no order denying access, there are

no exigent circumstances to justify granting the writ. Rather, the party seeking

the writ . . . must satisfy the usual and strict requirements for justifying relief

by prohibition or mandamus .") . Such must be the case, Peers explained,

because "[tJhe First Amendment guarantee of freedom of the press and the

Sixth Amendment guarantee of public trial in criminal cases, as presently

interpreted and applied in judicial decisions, have placed the news media in a

unique position in demanding access to court proceedings," a position that

"includes the right to gather news about a civil case." Peers, 747 S .W.2d at

127-28 (citing Branzburg v. Hayes, 408 U.S. 665 (1972); CBS, Inc. v. Young,

522 F.2d 234 (6th Cir. 1975)) .

                       III. Appellate Standard of Review

      Where the "procedural prerequisites for a writ are satisfied, `whether to

grant or deny a petition for a writ is within the [Court of Appeals'] discretion,'

"[a)nd appellate review of that decision is limited to an abuse of discretion

inquiry." Rehm v. Clayton, 132 S .W.3d 864, 866 (Ky. 2004) (quoting Peterson v.

Shake, 120 S .W.3d 707, 711 (Ky. 2003) (Keller, J., concurring)) . Where pure

questions of law are involved, we review the Court of Appeals' determination de

novo . See e.g. Rehm, 132 S .W.3d at 866 (citing Kentucky Labor Cabinet v.

Graham, 43 S .W .3d 247, 251 (Ky. 2001)) .

                                  IV. Analysis

     Appellant argues that the Court of Appeals left uncorrected the trial

court's erroneous conclusion that the settlement agreements at issue should
remain under seal . We agree and conclude that the agreements must be

disclosed pursuant to Kentucky's Open Records Act. Because it is dispositive

of the issues on appeal, we see no need to address Appellant's related

arguments.

       Generally, under Kentucky's Open Records Act, "[a]11 public records shall

be open for inspection by any person, except as otherwise provided by KRS

61 .870 to 61 .884 ." KRS 61 .872(l) . Though there are, indeed, several statutory

exceptions delineated by the General Assembly, the Act presumes a public

interest in the "free and open examination of public records ."4 KRS 61 .882(4) .

Accordingly, the Act's exceptions "shall be strictly construed," even when

disclosure would otherwise "cause inconvenience or embarrassment to public

officials or others ." Id .

       Here, it is beyond question that the settlement agreements are public




4 As to the nature of the public interest involved, this Court has explained:
       The public's "right to know" under the Open Records Act is premised
       upon the public's right to expect its agencies properly to execute their
       statutory functions. In general, inspection of records may reveal whether
       the public servants are indeed serving the public, and the policy of
       disclosure provides impetus for an agency steadfastly to pursue the
       public good.

   Kentucky Bd. ofExaminers ofPsychologists v. Courier~Iournal & Louisville Times
   Co., 826 S.W.2d 324, 328 (Ky. 1992) ; see also Zink v. Commonwealth, Dept. of
   Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828-29 (Ky. App . 1994) ("At its
   most basic level, the purpose of disclosure focuses on the citizens' right to be
   informed as to what their government is doing. That purpose is not fostered
   however by disclosure of information about private citizens that is accumulated in
   various government files that reveals little or nothing about an agency's own
   conduct.") .
 records for purposes of the Open Records Act's Appellees contend that the

agreements are, nevertheless, exempted from disclosure by virtue of the Act's

personal privacy exception . We cannot agree and find controlling this Court's

holding in Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader,

941 S.W .2d 469 (Ky. 1997) .

       Lexington Herald-Leader involved an agency's denying a local newspaper

access to settlement agreements entered into by the agency and various

unidentified individuals in resolution of their claimed injuries. See id. at 470 .

Though the agency chose to reveal the amount of consideration, it would not

disclose the identity of the recipients nor the types of underlying injuries . Id.

Similar to the case at bar, the agency cited to the confidentiality provisions

contained in the agreements in denying the newspaper's request. Id. On

appeal, this Court held that Kentucky's Open Records Act required public

disclosure of the recipients, notwithstanding the agreements' confidentiality

provisions. See id. at 471-73 .

       Lexington Herald-Leader concluded that because the settlement

agreements involved the expenditure of public funds, the public's interest in

the outcome of the settlement was, `a fortiori, strong: "[t]here could be no viable

contention that an agreement which represents the final settlement of a civil

lawsuit whereby a governmental entity pays public funds to compensate for an



5 A public record "means all books, papers, maps, photographs, cards, tapes, discs,
    diskettes, recordings, software, or other documentation regardless of physical form
    or characteristics, which are prepared, owned, used, in the possession of or
    retained by a public agency ." KRS 61 .870(2) .
injury it inflicted is not a public record ." Id. at 471 . Indeed, the Court

explained, "even before enactment of the Open Records statute, we held . . .

that `the payment of city funds . . . is a matter with which the public has a

substantial concern, against which little weight can be accorded to any desire

of the plaintiff in that suit to keep secret the amount of money he received .'

 d. (quoting Courier Journal & Louisville Times Co. v. McDonald, 524 S .W .2d 633

(Ky. 1974)) .

       Moreover, Lexington Herald-Leader rejected the idea that a confidentiality

agreement may impute, per se, a public record with a privacy claim superior to

that of the public's right of access :

       [A] confidentiality clause reached by the agreement of parties to
      litigation cannot in and of itself create an inherent right to privacy
      superior to and exempt from the statutory mandate for disclosure
      contained in the Open Records Act. . . . In balancing the
      sacrosanct right of an individual to privacy against legitimate
      public concerns and the right of the public to inquire into the
      workings of government, we find that a settlement of litigation
      between private citizens and a governmental entity is a matter of
      legitimate public concern which the public is entitled to scrutinize.
      A confidentiality clause in such an agreement is not entitled to
      protection . . .

941 S .W .2d at 472-73 ; see also id. at 472 ("[T]he specific statutory provisions .

. . reflect a policy determination favoring disclosure of public records over the

general policy of encouraging settlement. The people ofthis state, through their

elected representatives, have stated in the clearest ofterms that it is more

important that they have access to this type of information than that it remain

confidential. Thus, we hold that a public agency may not circumvent the

statutory requirements by agreeing to keep the terms of a settlement agreement


                                         10
confidential .") (quoting Anchorage School District v. Anchorage Daily News, 799

P.2d 1191, 1193 (Alaska 1989)) (emphasis in original) .
       Turning back to the case at bar, we think it quite clear that the

settlement agreements are presumably public records subject to disclosure,

regardless of their confidentiality provisions . Having reviewed the agreements,

it appears that the settlement proceeds were paid out of the Kentucky School

Board Insurance Trust, an insurance policy, the premiums for which had to

have been, at least indirectly, paid with public tax money. Moreover, the

agreements resolved claims between Moss, the school districts, and its agents

in their official (as well as personal) capacities, thus negating any notion that

the agreements concerned purely personal matters .

       This notwithstanding, we must still address whether the agreements are,

as Appellees contend and the trial court found, exempt from disclosure under

                                          .6 See Lexington Herald
the Act's personal privacy exception, KRS 61
                                          .878(1)(a)

Leader, 941 S .W.2d at 473 ("[W]e recognize that in some cases there may be a

legitimate concern for personal privacy [in confidential settlement agreements]

which would be sufficient under the Act.") . Mindful that the Act's exemptions

must be strictly construed, KRS 61 .882(4), and that it is the burden of the

agency resisting disclosure to sustain its action, KRS 61 .882(3), this Court has,

6 KRS 61 .878(1)(a), in pertinent part, reads:
      (1) The following public records are excluded from the application of KRS
      61 .870 to 61 .884 and shall be subject to inspection only upon order of a
      court of competent jurisdiction . . .
             (a) Public records containing information of a personal
             nature where the public disclosure thereof would constitute
             a clearly unwarranted invasion of personal privacy . . .
indeed, held that certain information may be exempt under the Act where "it is

the type of information about which the public would have little or no

legitimate interest but which would be likely to cause serious personal

embarrassment or humiliation ." Lexington Herald-Leader, 941 S.W .2d at 472 ;

see also Kentucky Bd. of Examiners ofPsychologists, 826 S .W .2d at 324

(identities of persons sexually victimized held exempt) ; Zink, 902 S .W.2d at 825

(forms containing individuals' marital status, number of dependents, wage rate,

social security number, home address and telephone number held exempt) .

We make this determination by "weighing the privacy interests of the persons

involved against the public's interest in disclosure," asking "whether the

information sought is of a personal nature," and, if so, "whether the public

disclosure of this information would constitute a `clearly unwarranted invasion

of personal privacy.' Cape Publications, Inc. v. Univ. ofLouisville Found., Inc.,

260 S.W .3d 818, 821 (Ky. 2008) (citing Kentucky Bd. ofExaminers of

Psychologists, 826 S .W.2d at 327-28) .

      Again having reviewed the agreements, we conclude that any contention

that their disclosure would constitute a clearly unwarranted invasion of

personal privacy is meritless. The agreements do not contain any of the

underlying details of the claims they purport to resolve that could expose Moss

or others to the risk of serious personal embarrassment of humiliation.

Rather, the agreements merely contain some scant personal identifiers that
could have easily been redacted.? Against such a minimal privacy interest lies,

as we have discussed, a strong public interest in knowing how its tax money is

being put to use by the state's agencies . While Appellees' claim that all that

remains to be disclosed is the amount of consideration paid to Moss as though

this were an illegitimate curiosity, we see it as bearing a direct nexus to exactly

how the public agency uses the public's money - whether as settlement

amounts or in regard to liability insurance premiums . Because KRS

.878(1)(a) did not apply to the settlement agreements so as to exempt them
61

from public disclosure under the Open Records Act, it was, therefore, error for

the trial court to so conclude . The Court of Appeals thus abused its discretion

in denying Appellant issuance of the writ.

                                   V. Conclusion

       For the foregoing reasons, we reverse the Order of the Court of Appeals

and remand this matter to that court for proceedings consistent with this

opinion .

       Minton, C .J. ; Abramson, Noble, Schroder, and Venters, JJ., concur.

Cunningham, J., concurs by separate opinion in which Scott, J., joins.

       CUNNINGHAM, J ., CONCURRING : I concur with the majority opinion

and believe, although we do not specifically hold today, that the Open Records

law is invoked - subject to its exemptions - anytime a public record keeping

agency is employed, even by private parties . Of course, it is the circuit clerk to

7 On remand, the court should redact any reference to Moss' social security number as
  well as her counsel's tax identification number. In addition, the final page attached
  to the agreements (including a photocopy of the check) need not be disclosed.


                                          13
which I refer. Here, the litigation involves a public agency with public funds

being affected. However, even when the litigation is between private parties,

once the settlement agreement has been lodged with the clerk - a public agent

- then it becomes as any other document so filed. There are ample protections

for private parties under KRS 61 .878 .

       I do not believe our holding here today is intended to infringe upon the

broad discretion of trial courts in guarding against prejudice which might arise

from public disclosure of certain evidence filed of record while the case is

ongoing. The temporary sealing of certain documents and other like

precautions may, in some cases, be necessary to insure both sides a fair trial.

Our holding here today refers only to settlement agreements filed at the

conclusion of the case .

      Lastly, it seems that it would behoove private litigants not to file in the

public record any settlement agreements - sealed or unsealed - which might

contain information not wished to be disclosed to public scrutiny. An agreed

order of dismissal should be sufficient, and settlement agreements can be

suitably drawn to stand upon their own as far as future enforcement is

concern .

      Scott, J., joins .
COUNSEL FOR APPELLANT:

Ashley Cleek Pack
James Lee Adams
Jeremy Stuart Rogers
Jon L. Fleischaker
Dinsmore 8v Shohl, LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202


COUNSEL FOR APPELLEES:

David Lee Yewell
221 West Second Street
Owensboro, KY 42303

John Frith Stewart
Stephen Charles Emery
Stewart, Roelandt, Stoess, Craigmyle 8v Emery, PLLC
6506 West Highway 22
P.O . Box 307
Crestwood, KY 40014

Stewart Christopher Burch
Logan 8v Gaines, PLLC
114 West Clinton St.
Frankfort, KY 40601

Michael A. Owsley
Regina A. Jackson
Whayne Cravens Priest, III
English, Lucas, Priest 8v Owsley, LLP
1101 College Street
P.O. Box 770
Bowling Green, KY 42102-0770
