Request By:
Mr. Gary Siemens
Acting Director
Economic Crime Unit
Commonwealth Attorney's Office
Louisville, Kentucky 40201
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. Larry R. Mott has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your possession relating to the recent investigation of the Pleasure Ridge Park Fire District conducted by the Economic Crime Unit of the Office of the Commonwealth's Attorney of Jefferson County. The specific documents requested are described as follows:
"1. The original complaint which caused this investigation to be started.
"2. All records obtained by your office in connection with the VISA or other charge account (s) issued to the Pleasure Ridge Park Fire District by Citizens Fidelity Bank, including monthly statements, receipts, or other records of individual transactions connected with the use of such charge account (s).
"3. All records obtained by your office in connection with charges of charge account (s) issued to Pleasure Ridge Park Fire District by Texaco or Chevron Oil Companies, including any monthly statements, receipts, or any other record of individual transactions connected with the use of such charge account (s).
"4. All records obtained by your office of demand deposit or checking accounts in the name of or used by the Pleasure Ridge Park Fire Department.
"5. Any written statement or transcript of any oral statement given by the following person(s) in connection with the investigation of the Pleasure Ridge Park Fire District: Gene Snawder, Carl Lovo, Ellis Fehler, Shelby Yates, Gilbert Back, Robert Fitzpatrick, Tracy Murrell, D.H. Robinson, William Wetterer or any of his employees who has participated in any audit of this fire district's finances.
6. Any records, receipts, or other documents concerning a trip to Denver, Colorado taken by any of the above persons the cost of which was at any time paid for or charged to the finances of the Pleasure Ridge Park Fire District.
"7. The final report from the investigators, or any other such report or document(s) used to determine if prosecution was or was not to occur as a result of this investigation."
In response to the request to inspect the above described documents, you offered to make available the document described in No. 1 above and refused to allow inspection of any documents described in Nos. 2 thru 7 above. You gave various reasons for your refusal including the following: You do not consider the records in your possession to be public records; some of the records, such as bank records, you acquired through subpoenae issued by the Jefferson County Grand Jury and they are private records rather than public; records belonging to the Pleasure Ridge Park Fire District should be requested of the Fire District rather than of the Economic Crime Unit; some of the records are preliminary in nature and are therefore exempt under KRS 61.878(1)(g)(h). In addition, both in your letter and in a phone conversation with the Attorney General's Office, you raised the issue as to whether you and the Economic Crime Unit are the custodians of the record within the meaning of the Open Records Law, KRS 61.870(3)(4).
You state that in the course of a three months investigation the amassing of the described records was the work product of the Economic Crime Unit. At the close of the investigation you made a report to the Pleasure Ridge Park Fire District in which you recommended certain changes and improvements in financial procedures. You also made a report to the Attorney General by letter dated June 10, 1980 in which you concluded that there was no cause for criminal prosecution against any persons. You also related your findings and conclusions to the requester, Mr. Mott, and to the news media.
It is your contention that because of the mixed nature of the documents and information you have accumulated in the course of your investigation and because the Open Records Law provides that public agencies must permit inspection of their records when request is made to the official custodian of the records of the agency, any request for records should be directed to the agency instead of to an investigatory unit which has obtained copies of the records in the course of its investigation. Your contention presents a question of first impression to be decided by the Attorney General in his statutory role as reviewer of a public agency's refusal to make records available for public inspection.
OPINION OF THE ATTORNEY GENERAL
Without ruling on the specific documents described in the request, we observe that many of the described documents are not exempt from public inspection under KRS 61.878. In OAG 79-27 we held that the business records of a public agency, such as vouchers, bills, receipts, cancelled checks and account books, are not exempt from, and should be made available for, public inspection. In this opinion we are addressing the procedural issue as to which person is the official custodian to whom a request for inspection of such records should be made.
There is no question that the Pleasure Ridge Park Fire District and the Economic Crime Unit are both "public agencies" as defined in the Open Records Law, and there is no question that both agencies have in their possession some of the records which have been requested by Mr. Mott. It is also a fact that the Economic Crime Unit has in its possession some records which it has obtained through subpoenae, some which may be privileged as correspondence with private individuals (KRS 61.878(1)(g)), and some records which may be exempt as preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended (KRS 61.878(1)(h)). It is a fact that the Economic Crime Unit has in its possession some records pertaining to the Pleasure Ridge Park Fire District which are not exempt from public inspection.
It is the opinion of the Attorney General that, under this state of facts, a request to inspect records pertaining to the Pleasure Ridge Park Fire District should be made to the Chief Administrative Officer or the designated "official custodian" of the records of the district, and that such records as are in the possession of the district need not be made available for inspection by the Economic Crime Unit. The Fire District is the official custodian of the records, while the Economic Crime Unit is only a casual possessor of the records as the result of having made an investigation. The "official custodian" is the proper official to make decisions on policy concerning the release of records and to avail the agency of any exemptions which it feels it has and should exercise in regard to withholding records from public inspection.
It is further our opinion that a request can be made to the Economic Crime Unit to inspect any records generated during its investigation of the Fire District and that the unit should respond in accordance with the provisions of the Open Records Law and KRS 17.150(2) which provides as follows:
"Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) the name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) information which may endanger the life or physical safety of law enforcement personnel; or
(d) information contained in such records to be used in a prospective law enforcement action."
If the Economic Crime Unit has in its possession any records which are not also in the possession of the Pleasure Ridge Park Fire District and which are not exempt from public inspection under KRS 61.878 or KRS 17.150(2), it should make them available for public inspection upon request.
It is our opinion that you should make another response to the request of Mr. Mott designating the following:
1. Any of the requested records which you believe should be made available by the Pleasure Ridge Park Fire District.
2. Any of the requested records in your possession which you are willing to make available for public inspection.
3. Any of the requested records which you have in your possession but which you believe you should withhold from public inspection and which are exempt from the mandatory requirement of public inspection by either KRS 61.878 or KRS 17.150(2).
If Mr. Mott makes a further request of either the Fire District or of the Economic Crime Unit and is not satisfied with the response, he may again appeal to the Attorney General as to specific records which have been withheld.