Request By:
Dr. Jack Blanton
Vice Chancellor of Administration
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-4019
By letter of October 21, 1988, to Attorney General Cowan, James L. Thomerson, Esq., has appealed, on behalf of the Lexington Herald-Leader Company, the University's October 20, 1988, denial of enumerated request No. 1, of Herald-Leader Project Editor David Green's October 16, 1988, request for copies of records related to seventeen enumerated topical areas, generally related to the University's athletics program and a National Collegiate Athletic Association (NCAA) inquiry concerning that program.
The specific request, denial of which has been appealed by the Herald-Leader, was as follows:
All correspondence between the NCAA and the University since and including October 10, 1988. This request includes correspondence originating both with the University and the NCAA.
This request includes, but is not limited to, a copy of the NCAA's Supplemental Official Inquiry. If you choose not to release this inquiry in full, please provide me with the original (not the summary prepared by the university) with the names blacked out. Please note that Dr. Roselle already has provided one piece of NCAA-UK correspondence with name(s) blacked out at his Saturday news conference.
By requesting a version with names blacked out, I am not in any way relinquishing rights to appeal to seek the entire document, which I believe we are entitled to have.
Please also note UK provided a full copy of the original inquiry in July with all names intact, appealed by the Herald-Leader.
In the course of research necessary to respond to this appeal, the undersigned learned from John Darsie, Counsel for the University of Kentucky, that a Joint Petition for Declaration of Rights action had been filed in the Fayette Circuit Court, on October 25, 1988 ( The Courier-Journal and Louisville Times Company and Richard Wilson v. University of Kentucky and Jack C. Blanton, Fayette Circuit Court, Division 6, Civil Action No. 88-CI-3703). The undersigned also understands, based upon a telephone conversation with University Counsel Joesph Burch, that the University has provided to the Herald-Leader, "all correspondence between the NCAA and the University since and including October 10, 1988" except the "NCAA Supplemental Official Inquiry."
OPINION OF THE ATTORNEY GENERAL
It appears, as indicated, that the University has supplied all correspondence sought by enumerated request No. 1 of the Herald-Leader's October 16, 1988 request, except the "NCAA Supplemental Official Inquiry." Accordingly, the only issue remaining to be determined on this appeal is the correctness of the University's denial of access to the "NCAA Supplemental Official Inquiry."
Whether the "NCAA Supplemental Official Inquiry" must be made available for inspection and copying under Kentucky's open records laws, or is exempt from inspection under provisions of such laws, is the specific focus of the Petition for Declaration of Rights action mentioned above.
KRS 61.880(2) requires that the Attorney General issue a written opinion within ten days (excepting Saturdays, Sundays, and legal holidays) of a request for review of a denial of inspection of records, stating whether the agency making the denial acted consistent with provisions of KRS 61.870 to 61.884. At the same time, KRS 61.882, provides in part:
(1) The circuit courts of this state shall have jurisdiction to enforce the purposes of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any citizen of this state.
(2) In order for the circuit courts of this state to exercise their jurisdiction to enforce the purposes of KRS 61.870 to 61.884, it shall not be necessary to have forwarded any request for documents to the attorney general pursuant to KRS 61.880, or for the attorney general to have acted in any manner upon a request for his opinion.
It is clear from KRS 61.882 that the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions. Under such statutory circumstance, it would be improper for this office to attempt to substantively determine an open records question, when the same question is before a circuit court.
A part of Mr. Green's request asks "If you choose not to release this inquiry in full, please provide me with the original . . . with the names blacked out." We believe this question is encompassed in the question before the circuit court in the action mentioned above.
To the extent the University of Kentucky has furnished a copy of its partial denial to the Attorney General, and has cited as a basis for its denial, certain provisions of KRS 61.878, it has "acted consistent with the provisions of KRS 61.870 to 61.884." Whether the basis of exemption stated by the University are correct is a question that must be left to the Fayette Circuit Court in view of the pending action noted above.