Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Knott County Sheriff's Department violated the Kentucky Open Records Act in denying Michael Sheliga's written requests for a "copy of any Kentucky statute that legally mandates a citizen to provide their name" to the Department, a list of the "first and last names of all employee's [sic]," including the [S]heriff," 1 and a copy of "[a]ny audio, video or other recording of the justice center (or courthouse) entrance area from Monday October 5th at or near 10 AM . . ." in which specified incidents occurred. As a threshold matter, this office must address the issue of jurisdiction. By letter dated December 7, 2009, Jonathan C. Shaw advised this office "that an action has been filed in Knott Circuit Court against the Knott County Sheriff's Department for alleged violations of the [O]pen [R]ecords [A]ct." Mr. Shaw is defense counsel for the Knott County Sheriff's Department in Michael Sheliga v. Knott County Sheriff, et al., Knott Circuit Court, C.A. No. 09-CI-00361. By letter dated October 30, 2009, Mr. Sheliga initiated the instant Open Records Appeal challenging the disposition of his requests dated October 7, 9, and 12, 2009; his complaint in the separate but related civil action was filed on November 12, 2009. In his complaint, Mr. Sheliga specifically alleged that the Sheriff did not properly respond to his requests dated October 8, 27, and 28, 2009.
In OAG 78-88, the Attorney General addressed this jurisdictional dilemma in the following manner:
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 that decision, the Lexington Herald-Leader appealed from the University of Kentucky's denial of its request for certain records concerning the NCAA's inquiry into the University's athletics program. Shortly thereafter, several newspapers filed a joint petition for a declaration of rights in Fayette Circuit Court, the "specific focus" of which was the issue of whether documents relating to the inquiry had to be produced 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, the Attorney General rejected the agency's position 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 dispute concerning access to public records. See also 04-ORD-058 (holding that Attorney General was not precluded from issuing a decision open records appeal because the "specific focus" of the civil action in the court 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. It remains unclear in this case whether the precise Open Records issue(s) being litigated in Knott Circuit Court is the identical Open Records issue(s) presented in the instant Open Records Appeal; however, it appears that separate requests for different records are implicated. Accordingly, this office must proceed in discharging its duty under KRS 61.880(2)(a). To the extent any identical requests are in dispute, and therefore exactly the same legal issues have been presented in both forums, the Attorney General defers to the Knott Circuit Court to resolve those issues.
Although the Department was not statutorily required to compile a list or create a record, 2 Sheriff Richardson ultimately provided Mr. Sheliga with a list of his employees. 3 Because the Department is not required to perform general research nor are legal reference materials "public records" within the meaning of KRS 61.870(2), the agency did not err in declining to locate and provide Mr. Sheliga with a copy of the requested statute. In accordance with
Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860 (Ky. App. 2001) and prior decisions of this office dating back to 1982, the Attorney General finds that the Department violated the Act in declining to provide Mr. Sheliga with a copy of the specified video recording merely because a related criminal action is currently pending against Mr. Sheliga; ongoing litigation, standing alone, does not suspend the duties of the Department under the Open Records Act.
Upon receiving notification of Mr. Sheliga's appeal from this office, Mr. Bates responded on behalf of the Department, noting that the "facts giving rise to this appeal revolve around an incident at the Knott County Judicial Center on the morning of October 5, 2009." According to Mr. Bates, on that date Mr. Sheliga "entered the Knott County Judicial Center, refused to cooperate with security procedures, caused a scene and was arrested." Mr. Bates advised:
. . . I am currently prosecuting the disorderly conduct case against Mr. Sheliga in Knott District Court. His case is set for trial on January 7, 2010. Mr. Sheliga is representing himself in this matter and has filed discovery requests that we are in the process of answering. Additionally, Mr. Sheliga has filed a motion to dismiss this case which will require a hearing. The legality of the arrest will be at issue.
In his open records request Mr. Sheliga asks the Knott County Sheriff to cite laws which give law enforcement the right to require a citizen to identify himself just prior to or following an arrest. Clearly, this is not the type of request the General Assembly had in mind when the enacted the Open Records [Act]. The Sheriff's office could produce a copy of the United States Constitution or some opinions from the U.S. Supreme Court, but this goes beyond what they are required to do in an open records request. They simply need to supply records they have on file. They do not have to take on the role of prosecuting attorney and engage in legal research.
As for the list of the Sheriff's employees which Mr. Sheliga says the Sheriff failed to respond to, Mr. Sheliga omits the Sheriff's correspondence dated October 8, 2009. Please find attached a copy of said correspondence and a certified letter receipt with Mr. Sheliga's signature. Clearly the Sheriff complied with this request contrary to Mr. Sheliga's assertions otherwise.
Finally, the video of the [J]ustice [C]enter entrance on October 5, 2009, which Mr. Sheliga requests, is evidence in a criminal proceeding. At the time Mr. Sheliga made his request, pursuant to KRS 61.878(1)(h), the video in question was exempt from an open records request since it was evidence to be used in a pending criminal proceeding in which police work was ongoing. [4] A copy of the video could not be easily accessed. It had to be taken to a video technician in order to be reproduced. The Knott County Sheriff simply did not have a copy to give to Mr. Sheliga when he made his request. At this time that work has been done. A copy of the video in question has just been acquired by the Commonwealth and it will be sent to Mr. Sheliga pursuant to his discovery request in the criminal proceeding. . . .
Consistent with governing precedents, the Attorney General concludes that the Department is not statutorily required to perform legal research in order to locate and provide Mr. Sheliga with a copy of the requested statute, but violated the Act in denying his request for the specified video recording merely because it was "evidence in a criminal proceeding. " This office has long recognized that a public agency is "not obligated to conduct general research in response to an open records request." 00-ORD-176, p. 2. For example, in OAG 89-45 the Attorney General specifically recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." Id., p. 3 (citations omitted). In 00-ORD-130, the Attorney General extended this reasoning to a request for administrative regulations and statutes, ultimately concluding that the agency was not obligated to conduct legal research "by locating relevant statutes and regulations pertaining to the subject of the request." Id., p. 4. Additionally, this office held that legal reference materials do not generally fall within the definition of a "public record" codified at KRS 61.870(2), and thus are not generally subject to the requirements of the Act. Id., pp. 2-3. This office reaffirmed 00-ORD-130 in 00-ORD-176, the reasoning of which is controlling on the facts presented; a copy of 00-ORD-176 is attached hereto and incorporated by reference. In light of this determination, the remaining question is whether the Department erred in denying Mr. Sheliga's request for the specified video recording; the short answer is "yes."
Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, this office recognized:
Although there is litigation in the background of an open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2 (emphasis added). Elaborating upon this view, the Attorney General subsequently observed that "[n]o exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in progress." OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position, recognizing that requests under the Open Records Act "are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, p. 4. In the latter decision, this office clarified that such observations were not intended "to suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act in lieu of discovery; however, this office has not recognized the right of a public agency to deny access to public records on that basis.
In
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. Citing
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart, supra, at 863. Thus, Mr. Sheliga "stands in relationship to" the Department under the Open Records Act as any other person. Unless the record in question falls within one or more of the exceptions codified at KRS 61.878(1)(a)-(n), none of which appear to apply here, the Department is required to provide Mr. Sheliga with a copy upon receipt of payment in accordance with KRS 61.874. In our view, the analysis contained in 06-ORD-208 and 04-ORD-208 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
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.
Michael SheligaDale RichardsonTimothy C. Bates
Footnotes
Footnotes
1 Although Mr. Sheliga also requested an "organizational chart," Knott County Sheriff Dale Richardson advised him in a timely written response that no responsive chart exists; a public agency cannot produce a nonexistent record. On appeal, Mr. Sheliga indicated that he is "satisfied" with Sheriff Richardson's response in this regard; accordingly, further elaboration is unnecessary.
2 See 09-ORD-145, pp. 8-9.
3 Mr. Sheliga failed to provide this office with a copy of the Sheriff's October 8, 2009, response to his request, and later advised that said response addressed his request dated October 6, 2009, which is also not of record and thus cannot be considered; however, Knott County Attorney Timothy C. Bates attached a copy of the October 8 letter to his response on behalf of the Department. It appears that Mr. Sheliga requested a list of employees on both October 6 and October 9. Sheriff Richardson's October 12, 2009, response to Ms. Sheliga's latter written request was deficient; however, the fact remains that he received the requested information and in a timely manner. Although Mr. Sheliga disputed the accuracy and completeness of the list provided in his reply to Mr. Bates' response, such issues are not justiciable in this forum.
4 To the extent the Department retrospectively invoked KRS 61.878(1)(h) as the basis for denial, this argument is unpersuasive inasmuch as the video surveillance tape was not "compiled in the process of detecting and investigating statutory or regulatory violations" but "records all activity within its sight on a regular basis and not as an integral part of a specific detection or investigative process." 03-ORD-017, p. 4. As in 03-ORD-017, the video recording "may be included in the investigative file," but "appears to have been made collaterally to, and not as an integral part of, the ongoing investigation." Id. On this issue, 03-ORD-017, a copy of which is attached hereto and incorporated by reference, is controlling. See 05-ORD-078.