Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Police (KSP) violated the Open Records Act in the disposition of a June 5, 2017, request by Sara Teague for records relating to the abduction of Heather Teague on August 26, 1995. The request was denied in a response issued by KSP on June 13, 2017. Attorney James ("Chip") Adams initiated an appeal to this office on behalf of Ms. Teague by letter dated June 20, 2017. For the reasons set forth below, we decline jurisdiction of this appeal.
The history of this appeal dates back to a letter to the KSP, dated May 25, 2016, wherein Sara Teague made, in pertinent part, the following request:
I am making an Open Records Request for all records of the 911 call or any call made by Tim Walthall of Newburgh, Indiana on or about August 26, 1995 reporting the witnessing of the abduction of Heather Danyelle Teague from a beach on the Kentucky side of the Ohio River.
Along with the recording or recordings, please include the dates and times and any and all records showing the chain of custody and the names of those involved in handling these records.
Please also include the names of those present at the meeting at KSP Post 16 in about 2008 when my daughter Holly, my lawyer Chip and I were finally allowed to listen to the 911 recording.
KSP denied that request pursuant to KRS 17.150(2)(d), which exempts records of law enforcement agencies from disclosure until such time as prosecution has been completed or declined, and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure through the Open Records Act. Sara Teague appealed that denial to this office and we issued a decision upholding the denial. 16-ORD-246.
From the record in this appeal, we understand that Ms. Teague appealed our decision (16-ORD-246) to Henderson Circuit Court (16-CI-746). 1 Henderson Circuit Court granted Kentucky State Police's motion to transfer venue to Franklin Circuit Court on January 24, 2017. On March 15, 2017, Mr. Adams, on behalf of Ms. Teague, filed a Motion for In Camera Review and Hearing Date in Franklin Circuit Court (case 17-CI-346). A hearing was held on the motion for in camera review in front of Judge Shepherd in Franklin Circuit Court on June 5, 2017. Following the hearing, Judge Shepherd issued an order, dated June 5, 2017, holding the case in abeyance so that Ms. Teague could submit a supplemental open records request to KSP. It is that request that is the subject of this appeal. Judge Shepherd's June 5, 2017, order stated "if the supplemental request is denied, Ms. Teague and her counsel may appeal that denial directly to this Court, and move to amend the Petition in the above-styled case to include that appeal." Ms. Teague then filed the June 5, 2017, request for records to KSP.
The June 5, 2017, letter to KSP, by Ms. Teague, made the following request:
I am making an Open Records Request for all records of all 911 calls, in all formats (reel to reel as well as digital) , reporting the abduction of Heather Danyelle Teague on August 26, 1995.
We are aware that each individual physical recording, both reel to reel and digital, possesses its own chain of custody. Therefore, I am also requesting any and all records showing the chains of custody corresponding to each individual recording, both reel to reel and digital, requested in paragraph one.
Please also indicate the specific dates and times in 2008 and 2016 in which the recordings were played for myself and my counsel Mr. Chip Adams. Additionally, provide which specific recording we heard in 2008 and which specific recording we heard in 2016, along with the corresponding chain of custody in each instance.
KSP denied this request, based upon KRS 17.150(2)(d) 2 and KRS 61.878(1)(h), 3 and filed its denial with Franklin Circuit Court. Mr. Adams then appealed that denial with our office.
Our review of the record concludes that the issues presented in the current appeal were included within the request presented on appeal in 16-ORD-246. Because of the essentially identical nature of the requests, and having issued our decision on those requests in 16-ORD-246, we decline to reconsider that decision, or issue a new decision regarding those requests. 40 KAR 1:030 Section 4 provides:
The Attorney General shall not reconsider a decision rendered under the Open Records Law or the Open Meetings Law. Parties dissatisfied with a decision may appeal the decision to circuit court as provided in KRS 61.880(5) and 61.848.
Also, because it appears that Sara Teague, through her attorney, Mr. Adams, has raised at least one (or more) of the same issues in the current appeal as is before the Franklin Circuit Court appeal of 16-ORD-246, it would "be improper for this office to substantively determine [the] open records question." OAG 88-78; accord , 93-OMD-81; 07-ORD-194; 17-ORD-096 (other citations omitted). Accordingly, this office respectfully declines jurisdiction. 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 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, at least one, and possibly all, of the issues in the appeal now before us are the same as the issue(s) presented in the litigation in Franklin Circuit Court. 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. 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 , or as permitted by Franklin Circuit Court in case number 17-CI-346. 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.
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