Request By:
J. Michael Noyes
General Counsel
Dept. of Agriculture
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel, Director, Civil and Environmental Law Division
John Voskuhl, a reporter for The Courier-Journal, has appealed your denial of his request to have access to certain documents in the possession of the Department of Agriculture ("Department").
Mr. Voskuhl asked to inspect and copy the following documents:
Any subpoenas delivered to the office of the state veterinarian by the Federal Bureau of Investigation. This request includes, but is not limited to, any subpoenas requesting the release of records related to Brereton C. Jones or Airdrie Farm.
You denied this request on the basis that inspection and copying of the requested records is precluded by KRS 61.878(1)(f). You stated that the records were compiled by the Department "pursuant to a request from a law enforcement agency conducting an investigation of possible statutory or regulatory violation relating to animal health." You further stated that the Department's Division of Animal Health is a law enforcement agency and that the requested records "were compiled for the purpose of detecting or investigating a possible statutory or regulatory violation." Finally, you stated that the premature disclosure of these records would harm the Department "by impeding a prospective law enforcement action or investigation relating to an animal health statute or regulation."
Mr. Voskuhl appealed to the Attorney General pursuant to KRS 61.880(2). Mr. Voskuhl contends that the records referred to in KRS 61.878(1)(f) do not include "subpoenas submitted to the office of the state veterinarian by the Federal Bureau of Investigation." In addition, he states that the requested records were not "compiled" by the Department, but rather are merely "retained" by the Department. Finally, Mr. Voskuhl rejects any assertion that the subpoenas must remain private to prevent the impeding of any prospective law enforcement action or investigation by the Division of Animal Health; he states that the requested records "would provide no information regarding any such investigation by state officials."
In a telephone conversation with the undersigned, you indicated that there is one subpoena that fits the description of records requested by Mr. Voskuhl. You also indicated that the United States Attorney's Office for the Eastern District of Kentucky requested that you not release the requested information because disclosure of the information would endanger and impede an ongoing investigation being conducted by the United States of America.
In a subsequent telephone conversation with the undersigned on November 5, 1990, you indicated that as of that date you had received no word from the United States Attorney's Office regarding the completion of the investigation. Due to newspaper reports regarding the completion of this investigation, we contacted the United States Attorney's Office to determine the status of this investigation. We received confirmation on November 7, 1990, that the federal government's investigation has been concluded.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that you acted in accordance with the Open Records Act, 61.870 to 61.884, in initially denying inspection of the requested subpoena. Because of the completion of the federal investigation, however, you now should allow inspection of the subpoena.
Among the public records that are excluded from the application of the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction 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 . . . .
The Department of Agriculture, Division of Animal Health, is a law enforcement agency and the requested subpoena is a record of the Department that was compiled by the Department in the process of detecting and investigating statutory or regulatory violations. The fact that the subpoena was served on the Department by the federal government does not change the fact that the subpoena was one of the documents compiled by the Department in this process. Moreover, the fact that the compilation of documents may not have begun until the subpoena was received by the Department does not change the fact that the Department did compile such documents, including the subpoena.
Release of the subpoena before the completion of the federal action could harm the federal government's investigation and could harm the agency's ability to cooperate with the federal government in this investigation as well as in prospective investigations. Although allowing inspection of the subpoena would not be as intrusive and harmful as allowing inspection of the documents requested in the subpoena, such inspection still could harm the investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government.
The fact that the Department has decided to take no action in this matter does not change our conclusion. As we stated in OAG 83-39:
The fact that state authorities have decided not to prosecute does not mean that their investigative records must now be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. Since the premature release of the state's investigative file at this time might interfere with the prosecution by the federal authorities we believe that the exceptions provided [by] KRS 61.878(1)(f) appl[y] and that you acted properly in denying inspection of the records.
In conclusion, it is the opinion of the Attorney General that your initial denial of Mr. Voskuhl's request to inspect the subpoena was proper under the Open Records Act. As noted above, however, the federal investigation is now concluded. Pursuant to KRS 61.878(1)(f), you now should allow inspection of the subpoena.
As required by statute, a copy of this opinion is being sent to John Voskuhl, who requested it. You have the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.