03-ord-238 November 25, 2003 In re: Chris Henson/Covington Police Department Open Records Decision

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November 25, 2003

In re: Chris Henson/Covington Police Department

Open Records Decision
At issue in the instant appeal is whether the Covington Police Department violated the Kentucky Open Records Act in denying the October 15, 2003, request of Chris Henson to have copies of specified police reports mailed to him because he does “not live or work outside of Kenton County[.]” Because a prior decision of this office involving the same parties and substantially the same issue is the subject of pending litigation in Kenton Circuit Court, the Attorney General is precluded from rendering a decision on the merits in this matter for the reasons set forth in OAG 88-78.
By letter dated October 15, 2003, Mr. Henson requested that copies of the following police reports be mailed to his home address:

  1. Criminal Mischief report[ ] the name of Chris Henson made on 10/2/03

  2. Criminal Mischief report #03-051942

  3. Theft report[ ] in [the] name of Barbara A. Cross made on April 8th 2003

In so doing, Mr. Henson indicated that he works outside of Kenton County.1

In a timely response, John Jay Fossett, City Solicitor for the City of Covington, denied Mr. Henson’s request on behalf of the Covington Police Department, advising him as follows:

As we have previously advised you, evidence indicates that you do not live or work outside of Kenton County, and in fact, you live 0.3 miles from the police station. The documents you are requesting are available for you to review and/or copy at the Covington Police Department, 1929 Madison Avenue, Covington, Kentucky, between 8:30 a.m. and 4:30 p.m. Monday through Friday. The cost for copying these documents is .10 cents per page.

On appeal, Mr. Henson reiterates his earlier request. In a supplemental response directed to this office after Mr. Henson initiated the instant appeal, Mr. Fossett elaborates upon his earlier reasoning:
The City of Covington maintains that Mr. Henson is not employed outside Kenton County and is capable of reviewing non-exempt documents at the Covington Police Headquarters, which is located 0.3 miles from Mr. Henson’s home, during normal business hours. The City of Covington also believes, as it has previously documented in its prior responses to Mr. Henson’s requests and appeals (copies of which have been previously supplied to your office), that Mr. Henson’s repeated requests to the City of Covington and its Police Department for documents are made solely to disrupt the operation of the Covington Police Department, possibly in retaliation for the 1998 criminal investigation of Mr. Henson and his subsequent conviction. In addition, the City of Covington relies on information provided by Mr. Henson on Kenton County Detention Center documents from 1998 to 2002, which indicate that Mr. Henson is not employed and relies on Supplemental Security Income (“SSI”) provided by the federal government. As far as the City can tell, the circumstances of Mr. Henson’s non-employed status have not changed.
In a response dated November 2, 2003, Mr. Henson denies the allegation that his requests are retaliatory in nature and made solely to disrupt the operation of the Covington Police Department. He also refutes the claim that he is unemployed and receiving SSI, asserting that he has worked “in Cincinnati, Ohio on the same job for 13 years[,]Mon.-Fri. 6 P.M.-6:00A.M.”
At issue in 03-ORD-166 was whether the Covington Police Department could properly require, as a condition precedent to mailing copies of records to Mr. Henson in response to a prior open records request, that he furnish “a letter from [his] employer that can be verified.” In concluding that the Covington Police Department could not condition release of the requested records on the receipt of such verification, we engaged in the following analysis:
The question here is substantially the same as one of the questions addressed in 01-ORD-162, involving these same parties. This office indicated in that opinion that Mr. Henson was correct in asserting that he had no duty to “produce the name of his employer.” Requiring a “letter capable of verification” from his employer is substantially the same as requiring Mr. Henson to “produce the name of his employer.” By demanding such letter as condition precedent to mailing records, the Covington Police Department subverted the intent of KRS 61.870 to 61.884 short of denial of inspection. 01-ORD-162, pp. 2-5. See also, 01-ORD-08, pp. 10-13.
On August 4, 2003, the City of Covington exercised its right to appeal this decision by initiating an action in Kenton Circuit Court. 03-CI-2007. Relevant for present purposes, the City requested that the court enter a judgment “finding that Mr. Henson lives in Kenton County and is not employed outside of the county, and therefore, the City does not have to mail him documents requested by him under the Open Records Act, KRS 61.870 et seq., and can require him to obtain these records at its office.” In addition, the City requested a judgment “finding that [Mr. Henson’s] repeated document requests to the City are intended to disrupt other essential functions of the public agency, and that the City may refuse future requests by [Mr. Henson] to inspect city records because of this disruptive conduct.” In other words, the arguments raised by the City here echo those to be addressed in its appeal to Kenton Circuit Court.
In OAG 88-78, we conclusively resolved any question as to the role of the Attorney General when presented with this dilemma. In that opinion, we were asked to determine whether the University of Kentucky properly denied the request of the Lexington Herald-Leader for a copy of the NCAA Supplemental Official Inquiry. As that issue was also the “specific focus” of a joint petition for a declaration of rights filed by the Courier-Journal in Fayette Circuit Court, we declined to render a decision on the merits. Citing KRS 61.882,2 we recognized that “the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions.” OAG 88-78, p. 2. Accordingly, we concluded that “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.” Id.3
Although factually distinguishable, we believe the reasoning of OAG 88-78 is equally applicable here. Thus, “[w]hether the basis of exemption stated by the [Covington Police Department is] correct is a question that must be left to the [Kenton] Circuit Court in view of the pending action noted above.” Id., p. 4. See also 97-ORD-184; 97-ORD-163; 97-ORD-73. However, this conclusion is limited to the unique circumstances presented and should not be viewed as a retreat from the well-established position that the presence of litigation suspends neither the duties of a public agency nor our duties under the Act. See 97-ORD-163.
A party aggrieved by this decision may appeal it by initiating an 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.
Albert B. Chandler III

Attorney General

Michelle D. Harrison

Assistant Attorney General

Distributed to:

Chris Henson

1939 Augustine Avenue

Covington, KY 41014-1117
Capt. Danny Miles

Covington Police Department

1929 Madison Avenue

Covington, KY 41011

John Jay Fossett

Office of the City Solicitor

638 Madison Avenue

Covington, KY 41011

1 In making his request, Mr. Henson implicitly relied upon KRS 61.872(3) which, in relevant part, provides that a person may inspect public records:
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

2 In relevant part, KRS 61.882 provides:

  1. The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any person.

  2. A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court.

  3. In an appeal of an Attorney General’s decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo.

3 Likewise, at page 2 of 93-OMD-81 we held that “a person cannot seek relief from [the Attorney General] under KRS 61.846 when the same and additional questions under the Kentucky Open Meetings Act are currently pending before a circuit court under KRS 61.848.”

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