Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, 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 this office is not the appropriate forum for adjudication of Capitol Publishing's complaint relative to the Department of Kentucky State Police's denial of its president, James Donato's, request for "an electronic data extract, which excludes any/all personal information, i.e., addresses and birthdates, of the Collision Report Analysis for Safer Highways (CRASH) database of data for the period of September 1, to and including September 18, 2007, . . . ." (Emphasis in original.) It is the decision of this office that 07-ORD-194 is dispositive of the issue on appeal and, in particular, the discussion that appears on page 2 of that decision. A copy of 07-ORD-194 is attached hereto and incorporated by reference. Because the question this appeal raises is before a circuit court, the Attorney General must decline jurisdiction.
Capitol Publishing's attempt to distinguish this complaint from the earlier complaints giving rise to 07-ORD-194 is unpersuasive. Mr. Donato argues 1 that 07-ORD-162 requires disclosure of the requested records to his company insofar as the company was deemed a "newsgathering organization under KRS 189.635" by the Kentucky Court of Appeals in Capitol Resources Corporation d/b/a Capitol Publishing v. Department of State Police, No. 2006-CA-000803-MR (Ky. App. August 1, 2007), and, in 07-ORD-612, the Attorney General determined that an unrelated newsgathering organization, The Cincinnati Enquirer, was entitled to an unredacted copy of the CRASH database. 2 However, in 07-ORD-162 KSP did not advance the argument that the requester intended to use the database for a commercial purpose. This was and is the critical issue in determining Capitol Publishing's right of access to accident reports, and the CRASH database that contains information gleaned from those reports, regardless of whether the database is redacted or unredacted, until the issue of Capitol Publishing's intended use of these records is finally resolved by the courts. KRS 189.635(6) makes clear that newsgathering organizations cannot "use or distribute the report[s], or knowingly allow [their] use or distribution, for a commercial purpose . . . ." KSP has, in the past, and is, presently, placing in issue Capitol Publishing's intended use of the records. Compare, 07-ORD-162 and 02-ORD-19. Here, as in 07-ORD-194, it would "be improper for this office to substantively determine [the] open records question when the same question is before a circuit court." OAG 88-78, p. 3, cited in 07-ORD-194, p. 3. We again defer to the Franklin Circuit court to substantively determine the question of Capitol Publishing's intended use of the requested records.
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.
Footnotes
Footnotes
1 Mr. Donato raises a separate argument in the instant appeal that was addressed, and disposed of, in 07-ORD-194.
2 07-ORD-162 was appealed to the Franklin Circuit Court. Kentucky State Police v. Cincinnati Enquirer, No. 07-CI-1434 (Franklin Circuit Court, Division I.)