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 University of Kentucky Office of State Archaeology violated the Open Records Act in denying Cultural Resource Analysts, Inc., President Charles M. Niquette's May 22 and June 20, 2007, requests to conduct an onsite inspection of records contained in the Geographic Information System database developed and maintained by that agency. As a threshold issue, however, the Attorney General must determine if his office is the appropriate forum for adjudication of CRA's complaint, KRS 61.880(2) notwithstanding, 1 in view of the fact that Mr. Niquette and OSA are currently engaged in litigation concerning OSA's imposition of a standard fee for onsite inspection of, inter alia, the same GIS database, and, at a more fundamental level, OSA's assertion that the disputed records are entirely excluded from the application of the Open Records Act by virtue of the statutory exemptions invoked. Resolution of this issue turns on whether the question presented in this appeal is the same question, or a "question . . . encompassed in the question" before the circuit court. 2 OAG 88-78, p. 2. We find that it is, and that it would therefore "be improper for this office to substantively determine [the] open records question." OAG 88-78, p. 2; accord, 93-OMD-81; 07-ORD-194; compare, 97-ORD-73; 04-ORD-058.
In October 2006, Mr. Niquette submitted a request to OSA in which he asked that he and his staff be permitted to "continue using the site file data as [they had] in the past - to conduct onsite inspections of these public records - without fees . . . ." Acknowledging that it had "previously allow[ed] free access to the database" OSA indicated that it had instituted site records check fees to "offset the cost of updating and maintaining the site inventory records, report libraries, and Geographic Information System coverages (GIS) and databases, " and thereafter denied Mr. Niquette's request. Mr. Niquette appealed OSA's denial to this office and on January 26, 2007, the Attorney General issued 07-ORD-013 determining that OSA subverted the intent of the Open Records Act, short of denial of inspection, by establishing a standard fee for onsite inspection of the inventories. In so holding, we opined that although "the records at issue . . . apparently enjoy protection from public inspection under the referenced federal law and regulation, 3 this does not alter their status as 'public records' within the meaning of KRS 61.870(2)." 07-ORD-013, p. 7. Continuing, we observed:
Because they enjoy statutory protection and are exempt from public inspection generally, the inventories are not "open records." They are, nevertheless, "public records, " as set forth above, and otherwise subject to the terms and provisions of the Open Records Act.
Id. On this basis, we concluded that "there is no authority for the imposition of fees for onsite inspection or 'self-access, '" and that "those portions of the fee structure that require payment of fees for onsite inspection or 'self-access' are legally unsupportable." Id. at 10, 11. Implicit in this holding was the recognition that open records requesters are statutorily vested with the right to conduct onsite inspection. On February 23, 2007, OSA appealed 07-ORD-013 to the Franklin Circuit Court, and that case is pending. The question on appeal to the circuit court is, in sum and substance, whether the disputed records are entirely excluded from the application of the Open Records Act, including those provisions relating to fees and onsite inspection.
Ultimately, this is the same question presented in CRA's July 17, 2007, open records appeal to the Kentucky Attorney General. For purposes of clarity we reiterate that, in the opinion of this office, the appeal before the Franklin Circuit Court fairly encompasses the question of whether OSA may deny CRA the right to "self-inspect electronic site data files altogether," and that it would therefore be improper for this office to adjudicate CRA's complaint.
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; 07-ORD-194.
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 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 the instant appeal.
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.
Kif H. Skidmore
Frank ButlerOfficial Records CustodianUniversity of Kentucky301 Main BuildingLexington, KY 40506-0032
Joshua M. SalsbureySturgill, Turner, Barker & Moloney, PLLC333 West Vine Street, Suite 1400Lexington, KY 40507
Barbara W. JonesGeneral CounselUniversity of KentuckyOffice of Legal Counsel301 Main BuildingLexington, KY 40506-0032
Footnotes
Footnotes
1 KRS 61.880(2) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
(Emphasis added.)
2 University of Kentucky Office of State Archaeology v. Charles M. Niquette, No. 07-CI-328 (Franklin Circuit Court, Division One).
3 In the instant appeal, OSA invokes additional statutory exemptions in support of its position that the disputed records are excluded from the application of the Open Records Act.