Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bardstown City Council violated the Open Records Act in the disposition of a January 31, 2017, request by Bardstown Mayor John Royalty for records relating to an investigation conducted by the law firm of Mattmiller Crosbie PLLC. The request was partially denied in a response issued by the city council on February 2, 2017. Attorney Jason P. Floyd initiated an appeal to this office on behalf of Mayor Royalty on March 6, 2017.
Thirty days later, on April 5, 2017, Mr. Floyd, on behalf of Mayor Royalty, filed a "Petition for Declaration of Rights, for Injunctive Relief, and for Damages" against the Bardstown City Council in the Nelson Circuit Court, identified as Case No. 17-CI-00197. In the section of that document subtitled "Petition for Declaration of Rights, " Mayor Royalty included an allegation that "the Council and [attorney Scott] Crosbie violated the Kentucky Open Meetings Act, as well as the Kentucky Open Records Act on at least two (2) occasions, one of which is still pending before the AG." In the section subtitled "Complaint for Damages," he alleged that "[t]he actions of the Defendants, . . . in violating the Kentucky Open Meetings Act and Kentucky Open Records Act, have violated the Mayor's civil rights." In his prayer for relief, he requested "a Declaration of Rights pursuant to KRS 418.040 as to the matters contained in this Petition," along with injunctive relief and damages.
Because Mayor Royalty has raised the same issue here and in Nelson Circuit Court, it would "be improper for this office to substantively determine [the] open records question." OAG 88-78; accord , 93-OMD-81; 07-ORD-194; 07-ORD-221; 07-ORD-248; 07-ORD-259; 08-ORD-038; 08-ORD-248; 11-ORD-192. Accordingly, this office respectfully declines jurisdiction.
Our 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 such 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.
The following excerpt from 07-ORD-194 is controlling:
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 supersedes that of the Attorney General." 97-ORD-73, p. 3.
As in 07-ORD-194, the issue presented in the appeal now before us is clearly identical with an issue presented in the parallel litigation. This office therefore "defer[s] to the [Nelson] Circuit Court to substantively determine the open records question now before it and presented" in the instant appeal. Id.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.