Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying Capitol Publishing's August 6, 2007, request for an electronic data extract from the CRASH database for the period from August 1, 2007, to August 5, 2007, and its August 7, 2007, request for all reports of traffic accidents occurring in Fayette, Kenton, Boone, and Campbell Counties for the period from August 1, 2007, to August 6, 2007. As a threshold issue, however, the Attorney General must determine if his office is the appropriate forum for adjudication of Capitol Publishing's complaints, KRS 61.880(2) notwithstanding, in view of the fact that Capitol Publishing and KSP are currently engaged in litigation concerning KSP's denial of access to accident reports Capitol requested in 2005. 1 Resolution of this issue turns on whether the question presented in this appeal is the same question before the circuit court. We believe that it is, and that it would therefore "be improper for this office to substantively determine [the] open records question." OAG 88-78, p. 3; accord, 93-OMD-81; compare, 97-ORD-73; 04-ORD-058.
As noted, in 2005 Capitol Publishing submitted a series of requests to KSP seeking access to traffic accident reports. In September 2005, KSP denied Capitol's pending requests and notified Capitol's president, James Donato, that future requests "were subject to Capitol's submission of evidence confirming its sole purpose as a newsgathering organization . . . ." Capitol Resources at 3. Shortly thereafter, Capitol initiated an action in the Franklin Circuit Court "pursuant to KRS 61.870, the Kentucky Open Records Act, seeking a declaration that Capitol [was] entitled to unredacted copies of traffic accident reports from KSP . . . ." Capitol Resources at 4. This case proceeded through the courts, and on August 3, 2007, the Kentucky Court of Appeals issued an opinion in which it vacated the circuit court's summary judgment in favor of KSP, determined that Capitol is a newsgathering organization, and remanded the case to the Franklin Circuit Court on the issue, inter alia, of Capitol's intended use of the reports. The Court of Appeals expressly directed that "each party shall have a reasonable opportunity to utilize discovery including, but not limited to, interrogatories, requests for production of documents, and depositions to establish whether Capitol requested the accident reports for a commercial purpose." Capitol Resources at 21.
Ultimately, these are the same questions presented in Capitol Publishing's August 13, 2007, open records appeals to the Kentucky Attorney General, notwithstanding the fact that the specific records requested differ as to time frame. The requested records consist of accident reports, and data elements from the CRASH database which is comprised of information gleaned from the reports, and access to those records directly implicates the issue of their intended use, regardless of whether they were generated in 2005 or in 2007. It is for these parties to the case now pending in the Franklin Circuit Court to explore this issue through the extensive discovery mechanisms available to them, and for the court, upon receipt of adequate proof, to determine Capitol's intended use of the requested records.
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. 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 appeals now before us, and in the underlying litigation, it clearly is. We therefore defer to the Franklin Circuit Court to substantively determine the open records question now before it and presented to this office in open records appeals 200700449 and 200700450.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 proceeding.
Footnotes
Footnotes
1 Capitol Resources Corporation d/b/a/ Capitol Publishing v. Department of State Police, No. 2006-CA-000803-MR (Ky. App. 2007) remanded to Franklin Circuit Court, Division I, C.A. #05-CI-01525.