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 Lexington-Fayette Urban County Government Division of Police's denial of Capitol Publishing's president, James Donato's, request for copies of "any/all traffic accident reports in the custody and control of the Lexington Division of Police which have a report date of August 18, 2007, to and including August 19, 2007 . . . ." 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.
In 07-ORD-194, this office was asked to determine if the Department of Kentucky State Police properly denied Capitol Publishing's request for, inter alia, all reports of traffic accidents occurring in Fayette County for the period from August 1, 2007, to August 6, 2007. Pursuant to KRS 189.635(3), the Division of Police is required to "file a report with the Department of Kentucky State Police" of any vehicle accident investigated by its officers within ten days after the investigation. Those reports comprise the "reporting system for all vehicle accidents which occur within the Commonwealth" that the Department of Kentucky State Police is statutorily obligated to maintain. KRS 189.635(1). Access to all such reports, regardless of whether they are requested from a local law enforcement agency or the Department of Kentucky State Police, is governed by KRS 189.635(5) and (6), mandating the confidentiality of the reports as to all individuals and entities except the parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, attorneys of the parties, and "newsgathering organizations, solely for the purpose of publishing or broadcasting the news." KRS 189.635(6). The latter provision expressly prohibits the use or distribution of the reports by newsgathering organizations for a commercial purpose.
Consistent with a line of decisions dating back to 1988, in 07-ORD-194 the Attorney General concluded that it would "be improper for this office to substantively determine [the] open records question" which that appeal raised because the same issue is currently before the circuit court in the case of Capitol Resources Corporation d/b/a Capitol Publishing v. Department of State Police, No. 2006-CA-000803-MR (Ky. App. 2007) remanded to Franklin Circuit Court, Division I, C.A. #05-CI-01525. That case arose from a dispute concerning Capitol Publishing's right of access to, inter alia, Fayette County accident reports generated in 2005, and was remanded to the circuit court on the issue of Capitol Publishing's intended use of the reports. At page 2 of that decision, we recognized that this was the same issue:
presented in Capitol Publishing's August 13, 2007, open records appeal to the Kentucky Attorney General, notwithstanding the fact that the specific records requested differ as to time frame. The requested records consist of accident reports, and data elements from the CRASH database which is comprised of information gleaned from the reports, and access to those records directly implicates the issue of their intended use, regardless of whether they were generated in 2005 or in 2007. It is for these parties to the case now pending in the Franklin Circuit Court to explore this issue through the extensive discovery mechanisms available to them, and for the court, upon receipt of adequate proof, to determine Capitol's intended use of the requested records.
Accord, 07-ORD-221. 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, and 07-ORD-221, p. 2. No efficiencies are served by the duplication of these efforts. We again defer to the 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.