Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Johnson County Solid Waste Commission violated the Open Meetings Act when it conducted a closed session discussion at its October 24, 2007, meeting. As a threshold issue, however, the Attorney General must determine if his jurisdiction in this matter is superceded by that of the Johnson Circuit Court, the Johnson County Fiscal Court and Solid Waste Commission having filed a petition for declaratory judgment in the circuit court on November 16, 2007. Johnson County Fiscal Court and Johnson County Solid Waste Commission v. Sandy Valley Press, Inc. d/b/a/ Big Sandy News, et al., No. 07-CI-00542 (Johnson Circuit Court). Resolution of this issue turns on whether the question presented in this appeal is the same question before the circuit court. Because it is, we find that it would "be improper for this office to substantively determine [the open meetings] question." OAG 88-78, p. 3; accord, 93-OMD-81; compare, 97-ORD-73; 04-ORD-058; 07-ORD-194.
On October 25, 2007, Big Sandy News Associate Editor Shawna Howell submitted a written complaint to Andrew Castle, Chairman of the Johnson County Solid Waste Commission, in which she objected to the Commission's closed session discussion of a garbage rate increase in a closed session and its failure to observe the statutory requirements for conducting a closed session. 1 As a means of remedying these violations, Ms. Howell proposed that the Commission conduct the same discussions "in a legal open session. "
By letter dated October 30, 2007, Johnson County Attorney Michael S. Endicott responded to Ms. Howell, explaining that the Commission had been threatened with legal action by both Apple Valley Sanitation and The Big Sandy News. It was his position that "[t]he county is between the proverbial rock and a hard spot" insofar as "[b]oth parties are threatening litigation . . . ." Shortly thereafter, The Big Sandy News initiated this appeal.
In supplemental correspondence directed to this office following commencement of Ms. Howell's appeal, Mr. Endicott amplified on his clients' position. Although he defended the Commission's actions on the merits, he acknowledged that the issues raised in this open meeting appeal occupy "a gray legal area." For this reason, Mr. Endicott advised, "the Johnson County Fiscal Court by resolution being issued, has filed a petition for declaration of rights this date [November 15, 2007] . . . outlining in clear detail the legal issue at hand." In numbered paragraphs 10 and 11 of that petition, which we have confirmed was filed on November 16, 2007, the Fiscal Court avers:
10. During [the October 24] meeting of the Solid Waste Commission an issue was presented to the Commission by counsel for Apple Valley Sanitation, Inc., claiming that certain items of information were proprietary in nature and were excepted from the open meetings act pursuant to KRS 61.810(g). 2 As a result of this request made by Apple Valley Sanitation, the Solid Waste Commission went into executive session to view these "proprietary documents" or to allow it to make recommendations to the Johnson County Fiscal Court regarding the rate hike;
11. Subsequent thereto and the next day of October 25, 2007, the defendant, The Big Sandy News raised a written objection to the closed door session of the Solid Waste Commission alleging that the Solid Waste Commission was in violation of the open meetings and open records act[.] (Sic.)
The Fiscal Court thereafter requests "a ruling or declaratory judgment of the respective rights of the parties as it pertains to interpretation of the ordinance and contract in question between the Johnson County Fiscal Court/Solid Waste Commission, and Apple Valley Sanitation, Inc., as pertains to the release of the 'proprietary information' of Apple Valley Sanitation, Inc." (Sic.)
These are the same questions presented in The Big Sandy News' open meetings appeal to the Kentucky Attorney General. Ms. Howell's complaint arises from the Commission's decision to conduct a closed session discussion of the garbage rate increase and the documents submitted by Apple Valley Sanitation in apparent support of its request for same. The allegations center on whether this was an appropriate subject for a closed session under KRS 61.810(1)(a) through (m), and whether the Commission observed the requirements for conducting a closed session set forth at KRS 61.815(1). Because these issues are now squarely before the Johnson Circuit Court, the Attorney General must decline jurisdiction in the instant appeal.
This conclusion is consistent with a line of decisions dating back to 1988. In OAG 88-78, the Attorney General recognized:
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 [certain] statutory circumstances, 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.
OAG 88-78, p. 3. In OAG 88-78, the Lexington Herald-Leader appealed to the Attorney General the University of Kentucky's denial of its request for records related to the NCAA's inquiry into the University's athletics program. Shortly thereafter, the Courier-Journal filed a joint petition for declaration of rights in the Fayette Circuit Court the "specific focus" of which was the issue of whether records relating to the NCAA inquiry must be made available for inspection under the Open Records Act. Similarly, in 93-OMD-81 the complainant simultaneously initiated an open meetings appeal to the Attorney General and an action in circuit court, alleging the same violation of the Open Meetings Act, and requesting the same relief in each forum. In both cases, the Attorney General declined jurisdiction, reasoning that "a person cannot seek relief from [the Attorney General] under [KRS 61.880/61.846] . . . when the same questions . . . are currently pending before a circuit court under [KRS 61.882 /61.848]." 93-OMD-81, p. 2; see also, 03-ORD-238 and 07-ORD-194. Thus, "where the issue before the circuit court is whether disputed records must be made available for inspection under the Open Records Act, the Court's authority 'to substantively determine [the] open records question' clearly supercedes that of the Attorney General." 97-ORD-73, p. 3.
In the latter case, we rejected the agency's argument that this office should not attempt to substantively determine an open records question when the same question was before a circuit court, noting that the underlying action there involved a challenge to the agency's denial of an application for a zone change and not a records access dispute. See also, 04-ORD-058 (holding that Attorney General was not precluded from issuing a decision in an open records appeal because the specific focus of the civil action in the courts was a challenge to a university's refusal to award an individual an athletic scholarship and not public access to records relating to that refusal). In these decisions, the Attorney General declared that "the open records issue is not the matter being litigated. " 97-ORD-73, p. 4; 04-ORD-058, p. 5. In the appeal now before us, and in the petition for declaratory judgment filed by the Johnson County Fiscal Court and Solid Waste Commission, it clearly is the matter being litigated. We therefore defer to the circuit court to substantively determine the open meetings issues now before it.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Shawna Howell
Andrew CastleSolid Waste CommissionP.O. Box 868Paintsville, KY 41240
Michael EndicottJohnson County AttorneyP.O. Box 181Paintsville, KY 41240
Robert G. Miller, Jr.Perry & MillerP.O. Box 900Paintsville, KY 41240-0900
Footnotes
Footnotes
1 Ms. Howell simultaneously submitted a request for all documents and/or correspondence supplied to the Commission from Apple Valley Sanitation owner David Lusk since January 2007 . . ." and the five year solid waste plan. That request, and its denial, is the subject of a separate open records appeal.
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2 The exception relied upon is erroneously cited. The correct statutory citation is KRS 61.810 (1)(g).
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