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 Judicial Conduct Commission violated the Kentucky Open Records Act in denying John D. Lee's October 10, 2011, request for "all written notes, all video or audio of the Judicial Conduct Commission's September meeting." By letter dated October 14, 2011, JCC denied Mr. Lee's request, correctly advising that JCC "functions under the rules of the Kentucky Supreme Court." Specifically, JCC noted that Rule 4.130 "provides that '[a]ll papers and information obtained by or on behalf of the Commission shall be confidential except as provided in this rule or by order of the Supreme Court.'" JCC also enclosed a copy of Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978) and OAG 91-45 (holding per Ex Parte Farley that custody and control of records of JCC, then Judicial Retirement and Removal Commission, "is vested in the Supreme Court"). By letter dated October 17, 2011, Mr. Lee challenged this denial, raising various constitutional issues beyond our purview, and JCC reiterated its earlier arguments in responding to his appeal. Shortly thereafter, Mr. Lee filed a "Verified Complaint to Compel Open Records" against JCC in Franklin Circuit Court, identified as Case No. 11-CI-01605. Mr. Lee specifically requested "Judgment against Defendant compelling them to provide requested records pursuant to KRS 61.872 directly to Plaintiff." 1 Because Mr. Lee has raised the same issue(s) here and in Franklin Circuit Court, it would "be improper for this office to substantively determine the open records question." OAG 88-78, p. 3; accord, 93-OMD-81; 07-ORD-194; 07-ORD-221; 08-ORD-038; 08-ORD-248; compare, 97-ORD-73; 04-ORD-058. Accordingly, this office respectfully declines jurisdiction.
Our conclusion is consistent with a line of decisions dating back to 1988. The following excerpt from 07-ORD-194 is controlling:
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.
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 appeals now before us, and in the underlying litigation, it clearly is.
07-ORD-194, pp. 2-4(original emphasis).
As in 07-ORD-194, the issue(s) presented in the appeal now before us and in the underlying litigation is clearly identical. This office therefore "defers to the Franklin Circuit Court to substantively determine the open records question now before it and presented" in the instant appeal. 07-ORD-194, p. 4.
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.
Distributed to:
John D. LeeScott D. MajorsGeorge F. Rabe
Footnotes
Footnotes
1 Mr. Lee reasoned that "his very own individual case files in Jefferson Circuit Court are also under the control of the Court of Justice and they are available for public viewing. Therefore, the records of the [JCC] should be too."