Request By:
Mr. George L. Atkins
Auditor of Public Accounts
Capitol Annex
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek an opinion of this office as to the application of the Open Records Law to investigations of your office.
Question No. 1:
"Are workpapers for investigations as opposed to audits, public records? "
You are referring to "nonroutine investigations on a state level. See KRS 43.050(2)(a) as to the routine or annual audit responsibility. As concerns the special investigative role of your office, see KRS 43.050(2)(f) and (3). In connection with such investigations, you and your assistants may issue process and compel the attendance of witnesses before you. KRS 43.080.
KRS 43.090 provides for your preparing and distributing reports of such investigation upon completion of your investigation. Subsection (1) of the statute provides that all such "audit reports" shall be public documents to which taxpayers shall have access.
KRS 61.870(2) defines "public records" :
"As used in KRS 61.872 to 61.884:
* * *
"(2) 'Public records' means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority."
It is our opinion that such work papers generated by you and your staff are not public records under KRS 43.090(1), since only the "completed report" can be a public document or record. Moreover, even when the complete report is made, such work papers would be exempted from the right of public inspection under KRS 61.878(1)(g) and (h), relating to preliminary drafts, notes, recommendations, memoranda, etc. Such preliminary drafts, notes, etc., are simply part of the tools which a public officer or employee uses in carrying out his statutory functions. See OAG 78-626, copy enclosed. The public has a right to inspect a complete public action, namely, the completed report. 1 The work papers are merely the informal and trial and error approach to the problem in the inchoate period leading up to the formulation of the completed report. Thus there are logical and compelling reasons for their exclusion as expressed in KRS 61.878. During the work period temporary conclusions written down and involving possible bad conduct of officers or employees might, at the later formulation of the completed report, prove to be erroneous or inaccurate.
Question No. 2:
"If the answer to the above question is affirmative, at what point do these workpapers become public record: as they are generated or at the completion of the investigation?"
Audit reports are public documents under KRS 43.090. Under the general context of KRS 43.090(1), the term "audit reports" embraces investigations. The subsection must be read as a whole. We can't isolate the one sentence relating to "audit reports" as public documents. Statutes must be considered as a whole in attempting to establish a purpose. Department of Motor Transp. v. City Bus Co., Inc., Ky., 252 S.W.2d 46 (1952) 47. Thus before the inchoate investigation ripens into a completed report, the work papers of the investigation are not subject to the Open Records Law. It is our opinion that KRS 43.090, in providing that audit and investigative reports are public documents, in effect amends KRS 61.870(2) [which defines "public records" ]. KRS 43.090, as amended in 1978, is later legislation [KRS 61.870 was enacted in 1976] and constitutes specific legislation as contrasted with general [KRS 61.870]. See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939) 239. Also see City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
As we said above, when the report is completed, such work papers are exempt under KRS 61.878. Thus the work papers generated by you and your staff never become public records. You must distinguish such records from complete documents obtained outside of your office which were public records when you got them. They continue to be public records.
Question No. 3:
"If it can be reasonably anticipated that the subject of the investigation will be considered by a Grand Jury, would this fact materially affect your conclusion?"
"If, after the investigation has been completed, you as auditor have a reasonable basis for believing that a possible criminal violation has occurred, then it is our opinion that KRS 61.878(1)(f) [certain records are excluded from public inspection except upon court order] is sufficiently broad to cover the subject final report of investigation. Here your office would be acting as a governmental agency cooperating with proper "law enforcement agencies" described therein. After the law enforcement action is completed or a decision is made to take no action, then, at such time, such final reports shall be open under the Open Records Law. The point is that the fresh air of openness does not flow in until such time as the possibly anticipated criminal issue is dealt with by proper law enforcement agencies. Even the open records philosophy must not be used at some precarious point as described to defeat adequate enforcement of the criminal law.
The statute [KRS 61.878(1)(f)] provides that after "enforcement action" is completed or a decision is made to take no action, then, at such time, the final report would be a public record subject to the open records provisions. The term "enforcement action" includes the entire judicial treatment of the matter. To hold that such report is open prior to the event of complete prosecutorial and judicial treatment of the issue or the event of making a decision as to no prosecutorial and judicial action would invite the constitutional problem of unfair and unconstitutional publicity as applied to a defendant charged with crime. In the leading case of Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600 (1966), Dr. Sheppard's murder conviction was voided by the Supreme Court for the reason that the publicity generated by the news media abetted by local officials, the trial judge, the police and prosecutor, deprived Sheppard of due process of law as guaranteed by the Sixth and Fourteenth Amendments of the Federal Constitution. The court wrote, inter alia, that "Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused."
Question No. 4:
"We have interpreted OAG 76-204 and the statutes together to mean that workpapers shared with other investigative agencies are not public records until the completion of the investigation. Is this interpretation correct?"
We have answered that under Question No. 2.
Question No. 5:
"We have interpreted OAG 76-204 and the statutes together to mean that workpapers are 'preliminary drafts', and not open records, until the audit report is finalized. Is this interpretation correct?"
We have answered that above. OAG 76-204 is modified accordingly.
Footnotes
Footnotes
1 This applies to a routine audit or investigation which involves no probability of criminal involvement.