Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Personnel Cabinet violated the Open Records Act in denying the request of Gregory Valentine for "all records (excepting those exempted by law)" in the Personnel Cabinet's possession for a former prosecutor in the Jefferson County Commonwealth's Attorney's Office, now a Jefferson County District Court Judge, and a prosecutor in the Jefferson County Commonwealth's Attorney's Office (hereafter referred to as "prosecuting attorneys"). Because a prior opinion of this office, 07-ORD-175, involving the same parties and the same open records issues, is currently pending on appeal in the Franklin Circuit Court, we defer to the Court to substantively determine the open records issues and decline jurisdiction in this appeal. OAG 88-78.
By letter dated September 4, 2007, Thomas B. Stephens, Executive Director, Office of Legal Services, responded to Mr. Gregory's request on behalf of the Cabinet, advising in relevant part as to the records of the prosecuting attorneys:
[W]e are currently processing your request. Pursuant to the ruling in Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), these individuals have the right to intervene and request that their personnel files and personal information not be released. Accordingly, we are in the process of contacting these individuals and will file a supplemental response once notice is received from these individuals.
Shortly thereafter, by letter dated September 10, 2007, Mr. Valentine initiated the instant appeal challenging the Cabinet's actions relative to his request for the records of the prosecuting attorneys.
After receipt of notification of the appeal, Mr. Stephens provided this office with a response to the issues raised in the appeal and which also served as the Cabinet's supplemental response to Mr. Valentine's August 27, 2007, request. In his response, he advised that "upon learning of the requests made by Valentine, who is currently incarcerated, the prosecuting attorneys vehemently opposed the release of their personnel files." In support of the Cabinet's denial of the request, he argued:
While a typical request of a personnel file with appropriate redactions may not immediately constitute an "unwarranted invasion of personal privacy," the facts of this case clearly violate KRS 61.878(1)[a]. Valentine is an incarcerated individual, seeking the personnel files of the very individuals responsible for his incarceration.
. . .
The potential threat of misuse of this information strongly outweighs an inmate's right to public information. In fact, the Attorney General has consistently upheld that an inmate's access to public information is limited: "An inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records." 95-ORD-105, p. 3 citing 94-ORD-90, p. 2 . . . .
In addition to the above, the Cabinet also denied the request for the personnel records pursuant to the direction of the Commissioner of Corrections and KRS 197.025(1).
In 07-ORD-175, an appeal involving the same parties to this appeal, Mr. Valentine made a request to the Personnel Cabinet for all the records of another former Jefferson County prosecutor. The Cabinet denied the request and relied upon the same statutory provisions which it relies in the instant appeal. This office held that the Cabinet's blanket denial of the request for the prosecutor's personnel file violated the Open Records Act, reasoning that although the Cabinet could properly withhold personal information, such as the social security number, home address and telephone number, marital status, date of birth, medical records, evaluations, and other documents unrelated to the public employee's qualifications or job performance under authority of KRS 61.878(1)(a), the redacted personnel file would otherwise be subject to inspection. In addition, this office found that the Cabinet also erred in its reliance for withholding records under KRS 197.025, as that provision expressly applies to the Department of Corrections, holding that "[t]o hold otherwise would result in the unintended consequence of the Commissioner of the Department of Corrections being the arbiter of inmate access to records maintained by every public agency." 07-ORD-175, p. 8.
The Cabinet has appealed the decision in 07-ORD-175 to the Franklin Circuit Court. (See Commonwealth of Kentucky, Personnel Cabinet v. Gregory Valentine, Franklin Circuit Court, Division 1, Civil Action No. 07-CI-1502), raising the same open records issues in the Franklin Circuit Court that are presented in the instant appeal. We therefore defer to the Franklin Circuit Court to substantively determine those open records issues now before it and decline jurisdiction in this appeal. In reaching a similar result in 07-ORD-194, at p. 2-3, this office stated:
In a line of decisions dating back to 1988, the Attorney General has recognized:
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.
Accordingly, because the issues presented in this appeal are the same open records issues currently before Franklin Circuit Court, we defer to the Court to substantively determine those open records issues and decline jurisdiction in this appeal. OAG 88-78.
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.
Gregory Valentine, # 163775
Thomas B. StephensExecutive DirectorOffice of Legal ServicesPersonnel Cabinet200 Fair Oaks Lane, 5th FloorFrankfort, KY 40601