Request By:
Dwight Preston
Lee B. Harris
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Real Estate Commission violated the Open Records Act in the disposition of Dwight Preston's January 17, 2008, request for records relating to the license applications of three named individuals. Mr. Preston represents an individual whose application was denied. He has initiated legal action in the Hardin Circuit Court on behalf of his client, challenging, inter alia , the Board's "refusal to provide the requested records in a timely manner and before the appeal deadline expired," and asserting that the refusal "blatantly violated [his client's] civil rights, his due process rights, and his right to a meaningful appeal." Petition for Judicial Review and Complaint for Damages and Declaratory Relief, Count 1, 08-CI-234 (Hardin Circuit Court, 01-29-08).
As a threshold issue, the Attorney General must determine if his office is the appropriate forum for adjudication of Mr. Preston's open records complaint, KRS 61.880(2) notwithstanding, in view of the fact that he has initiated action against the Commission in the Hardin Circuit Court, and one of the issues in that action is the propriety of the Commission's denial of his open records request. Resolution of this issue turns on whether the open records question presented in this appeal is the same open records 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; 07-ORD-194; compare, 97-ORD-73; 04-ORD-058.
On January 22, 2008, the Commission denied Mr. Preston's request, explaining that although copies of the requested records "are ready to be mailed," "the Commission cannot release files until the 30-day appeal time has lapsed." Shortly thereafter, Mr. Preston submitted this open records complaint to the Attorney General, indicating his client's intention to appeal the Commission's denial of his application and "to further claim . . . that this act by the Commission of refusal to provide records is step [sic] in denying this young man his due process rights." By letter dated February 4, 2008, the Commission notified this office that the requested documentation was released to Mr. Preston on January 31, 2008, and expressed the view that "this matter is resolved." Mr. Preston immediately submitted written objections to the Commission's February 4 letter, asserting that this "matter has not been resolved and in fact there has been a civil suit filed against the Real Estate Commission and one of the main issues is that the actions of the . . . Commission violated the Open Records law." He requested "a full and complete opinion from [the Attorney General's] office concerning whether . . . this action was appropriate . . . ." It is our decision that the question presented in Mr. Preston's appeal to this office is identical to the question presented in Mr. Preston's appeal to the Hardin Circuit Court, and that we must therefore decline jurisdiction. 1
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; accord 07-ORD-194; 07-ORD-221; 07-OMD-248; 07-ORD-259.
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 is one of a number of issues "being litigated. " It is central to adjudication of the claims advanced by Mr. Preston on behalf of his client and not merely incidental thereto. We therefore defer to the Hardin Circuit Court to substantively determine the open records question now before it and presented to this office in open records appeal number 200800042.
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 40 KAR 1:030 Section 6 provides as follows:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
The Commission takes the position that this matter was resolved, or "mooted," by disclosure of the requested records after Mr. Preston initiated his appeal to the Attorney General but before the Attorney General issued a decision in this matter. We believe that resolution of the issue of "mootness" must also be left to the Hardin Circuit Court.