Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, under authority of KRS 61.882; 07-ORD-194; and OAG 88-78, the Attorney General is foreclosed from rendering an open records decision. We have been advised that the same open records issues that are presented in the instant appeal are currently pending in the Franklin Circuit Court in Amy Owens v. Commonwealth of Kentucky, Public Protection Cabinet, Department of Financial Institutions, Division II, Civil Action No. 08-CI-1106. 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 the 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.