Request By:
James P. Berry, Esq.
Natural Resources and Environmental
Protection Cabinet
Office of General Counsel
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
George D. Kappus, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various records in your custody concerning Texas Eastern Transmission Corporation and PCB Contamination Matters.
This office has not been furnished with a copy of the original letter of request to you. Your Cabinet obviously received the letter as you replied to Allen S. Rutkin, Esq., apparently an associate of Mr. Kappus, on two separate occasions. Your letter of April 11, 1988, said as follows:
Pursuant to your May 8, 1988 [sic] request, for information under the Freedom of Information Act, please find enclosed the documents that you requested. The remaining portions of the file not transmitted herein are litigation material which are not obtainable through an open records request.
In a letter dated April 14, 1988, and addressed to Mr. Rutkin, you replied as follows:
Pursuant to the Kentucky Revised Statutes, Section 61.872, the documents that I previously mailed to you are the only documents that are discloseable. The portions of the record that are being withheld are materials which are excluded from disclosure under KRS 61.878, paragraphs f, g, and h.
In his letter of appeal, which was actually addressed to you, a copy of which was received by this office on April 29, 1988, Mr. Kappus maintains that your letters to him do not comply with the terms and provisions of KRS 61.880. He states that your responses fail to set forth the nature of the records you claim are excluded from disclosure and you do not make clear whether each of the exceptions you refer to [KRS 61.878 (g) and (h)] applies to each record withheld. He complains of your failure to state the specific exception relied upon in each instance.
The undersigned Assistant Attorney General talked with you by telephone on May 4, 1988. You advised that the documents in question are contained in one file which constitutes the Cabinet's litigation file. The documents pertain to matters which are presently involved in litigation. In addition, the litigation file contains some of what you would term as preliminary materials.
OPINION OF THE ATTORNEY GENERAL
This office has reviewed the provisions of KRS 61.880(1) including the sentence, "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. "
It is expected that in the future you and your Cabinet will fully comply with the provisions of KRS 61.880(1) relative to responses to requests to inspect and copy public records. Your responses were very brief and do not fully satisfy the requirements imposed by the statute.
The primary issue, however, is whether the material requested was properly withheld, rather than the adequacy of the written response, and that can be resolved on the basis of the material and information made available to this office.
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(f):
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
IN OAG 87-15, copy enclosed, this office referred to an earlier opinion dealing with a request to examine a case file in the possession of the State Police. We concluded in part that such a case file is not open as long as the case is pending. At page three of OAG 87-15 we quoted from the earlier opinion as follows:
". . . Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(f) provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-424; KRS 17.150(2)."
Numerous other opinions of this office have concluded that investigative files and reports maintained by state agencies are not subject to public inspection until after prosecution is completed or a determination not to prosecute has been made. See, for example, OAG 87-66 and OAG 87-35, copies of which are enclosed.
While the exception to public inspection set forth in KRS 61.878(1)(f) will apply until the litigation has been completed or until it has been decided not to litigate the matter, the documents in question would be subject to public inspection upon completion of the litigation or the making of the decision not to litigate, unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to inspection. Thus it is always possible that even after litigation has been completed or a decision not to prosecute has been made that some portion of the material in question will still not be available for public inspection.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the records contained in a case file involving matters which are presently being litigated was proper at this time. Once the litigation has been completed, the documents in question will be subject to public inspection unless they are excluded by other statutorily recognized exceptions to public inspection.
As required by statute a copy of this opinion is being sent to the appealing party, George D. Kappus, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.