Request By:
Shawna HowellLillian Wheeler, Commissioner
Johnson County Solid Waste Commission
P.O. Box 868
Paintsville, KY 41240Andrew Castle, Chairman
Johnson County Solid Waste Commission
P.O. Box 868
Paintsville, KY 41240Michael S. Endicott
Johnson County Attorney
P.O. Box 181
Paintsville, KY 41240-0181Roger G. Miller, Jr.
Perry & Miller
P.O. Box 900
Paintsville, KY 41240-0900
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Johnson County Solid Waste Commission violated the Kentucky Open Records Act in denying the request submitted by Shawna Howell, Associate Editor, on behalf of The Big Sandy News for a copy of "[a]ny and all documents and/or correspondence supplied to the Solid Waste Commission from Apple Valley Sanitation owner David Lusk since January 2007" and the "Five Year Solid Waste Plan." As a threshold matter, the Attorney General must determine whether his jurisdiction in this matter has been superseded by that of the Johnson Circuit Court as the Johnson County Fiscal Court and Solid Waste Commission filed a petition for declaratory judgment in the Circuit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 the matter before this office clearly is the matter being litigated, the Attorney General finds that it would "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.
By identical letters directed to Andrew Castle, Chairman of the Commission, and Lillian Wheeler, Commissioner, on October 25, 2007, Big Sandy News Associate Editor Shawna Howell submitted her written request for the aforementioned records; Ms. Howell simultaneously filed the Open Meetings complaint (objecting to a discussion of a garbage rate increase by the Commission during a closed session and its failure to observe the statutory requirements for conducting a closed session) that culminated in the separate but related appeal which resulted in 07-OMD-248. In a letter dated October 30, 2007, Michael S. Endicott, Johnson County Attorney, responded to Ms. Howell, enclosing a spreadsheet "which delineates the standard bill fare and expenses that was presented to the Commission regarding Apple Valley Sanitation." However, Mr. Endicott acknowledged the existence of another spreadsheet "that cannot be turned over at this time." In addition, Mr. Endicott explained that both Apple Valley Sanitation and The Big Sandy News had threatened the Commission with legal action; his position was that the "county is between the proverbial rock and a hard spot." Shortly thereafter, Ms. Howell simultaneously initiated her Open Records and Open Meetings appeals.
Upon receiving notification of Ms. Howell's appeal from this office, Mr. Endicott acknowledged that the issue presented "is very vague and is a gray legal area." For this reason, Mr. Endicott advised, "'the Johnson County Fiscal Court by resolution being issued, has file a petition for declaration of rights this date [November 15, 2007] . . . outlining in clear detail the legal issue at hand.'" 07-OMD-248, p. 2. A copy of the "Petition for Declaratory Judgment" is attached to Mr. Endicott's response, along with a copy of his response to Ms. Howell's Open Meetings appeal, which is expressly incorporated. At paragraphs 10 and 11 of the Petition (filed on November 16, 2007), which are set forth in their entirety at pages 2-3 of 07-OMD-248, the Fiscal Court outlines the Open Meetings issue, while paragraphs 12 and 13 address the Open Records issue as follows:
12. In addition, The Big Sandy News through Shawna Howell requested, pursuant to the [O]pen [R]ecords [A]ct, these same "proprietary documents";
13. The Big Sandy News /Shawn[a] Howell's request was denied based upon the objections of Apple Valley Sanitation, Inc. through the possible pending litigation from both sides of the fence, namely the respondents, Big Sandy News, Inc./Shawna Howell and Apple Valley Sanitation, Inc.
Accordingly, the Fiscal Court requested, at paragraph 15, "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."
Because the issue presented in this appeal -- whether the Commission violated the Kentucky Open Records Act in denying Ms. Howell's request for the allegedly proprietary documents - is one of the issues currently being litigated in Johnson Circuit Court, it would be improper for this office to substantively determine that issue. In our view, the reasoning of 07-OMD-248, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented; the Office of the Attorney General is not the appropriate forum in which to adjudicate this matter. "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 supersedes that of the Attorney General." 97-ORD-73, p. 3. As in 07-OMD-248, and the authorities upon which that decision is based, this office must decline jurisdiction. See 07-ORD-238; 07-ORD-221; 07-ORD-203; 07-ORD-194.
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.