Its back to school for the Jefferson County Public Schools in an open records dispute filed by Kentucky PTA, "a private nonprofit," against the school district in Jefferson Circuit Court. Kentucky PTA seeks to block JCPS's disclosure of PTA financials -- filed with JCPS under state law – to open records requester and public schools advocate, Gay Adelmann.

As a "party affected by disclosure" of the PTA financials to Adelmann, Kentucky PTA objects that disclosure of the PTA financials "would permit an unfair commercial advantage" to Its or its constituent members' competitors.

JCPS has honored previous requests for the same records without objection.

But before the financials were released to Adelmann, Kentucky PTA petitioned the Jefferson Circuit Court to block JCPS from releasing them.

Why do the litigants need to return to school?

Its because the open records law does not contemplate the resolution reached at an August 15 hearing. Although he expressed skepticism about Kentucky PTA's argument that the financials are "generally recognized as confidential or proprietary," Judge Charles Cunningham granted its motion for a temporary injunction. He went on to state that he would ask the attorney general to issue an opinion on the open records issue within 30 to 90 days.

And therein lies the problem.

The attorney general lacks statutory authority to render an open records decision under KRS 61.880(2) and would be ill-advised to issue an advisory opinion under KRS 15.020 and 15.025. A 1994 case indicates that the responsibility rests with Judge Cunningham to determine if the PTA financials are open for inspection, as JCPS and Adelmann believe, or excluded from public inspection, as Kentucky PTA believes.

The 1994 case provides clear direction for cases like this one. In Beckham v. Jefferson County Board of Education, the Kentucky Supreme Court recognized that parties who are affected by a public agency's decision to disclose public records in response to an open records request can challenge the agency's decision in circuit court under KRS 61.882.

https://law.justia.com/cases/kentucky/supreme-court/1994/93-sc-967-i-1…

Beckham began with a Courier Journal request to JCPS for teacher disciplinary records. JCPS acknowledged its duty to disclose the disciplinary records and agreed to release them. Before the records were released to the CJ, several teachers petitioned the Jefferson Circuit Court to block disclosure. The affected parties in that case were the teachers; the requester was the Courier Journal; and the agency was JCPS. The circuit court decided the open records issue on the merits, implicitly recognizing the teachers' "standing," and the matter proceeded through the Court of Appeals and Supreme Court.

The Supreme Court explicitly recognized the teachers' (affected parties') standing declaring that, "having commenced litigation prior to release of the information sought, the teachers were entitled to be heard on their exclusion claims and entitled to appellate review of the merits."

Here, the affected party is Kentucky PTA; the requester is Adelmann; and the agency is, by pure coincidence, again JCPS. As in Beckham, the circuit court should decide the open records issue on the merits. If necessary, the circuit court's opinion may then be appealed to the Court of Appeals.

But nothing in this scenario triggers the attorney general's duties or authority. Under KRS 61.880(2), the attorney general is required to review an open records request and a public agency's denial of that request and issue a decision stating whether the agency violated the open records law. In this case, JCPS did not deny Adelmann's request. The dispute between the affected party (Kentucky PTA) and JCPS would never come to the attorney general in an open records appeal. He has no statutory jurisdiction to issue an open records decision to JCPS that it did or did not violate the law by agreeing to release the PTA financials.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

Nor can, or should, he issue an advisory opinion on a matter in litigation. 40 KAR 1:020 Section 4 states that the attorney general will not issue an opinion "in response to questions involving matters being litigated or questions submitted in contemplation of litigation." Longstanding agency practice forbids the attorney general from issuing an advisory opinion in an open records or meetings dispute.

https://apps.legislature.ky.gov/law/kar/040/001/020.pdf

But how does the attorney general tell the judge "No, this ball is in your 'court.'" That is a dilemma.

Adelmann and Kentucky PTA have, according to this article, entered into discussions aimed at resolving this dispute. Let's hope they do so before the case proceeds much further.