Request By:
Mr. James Hite Hays
Attorney for Shelby County Board of Education
521 Main Street
P.O. Box 88
Shelbyville, KY 40065
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney
Mr. Mark L. Miller, an attorney representing Shelby Metro Fraternal Order of Police Lodge No. 51, has appealed to our office the Shelby County Board of Education's denial of his open records request to inspect and copy correspondence from City of Shelbyville Police Chief John Miller to Superintendent Leon Mooneyhan concerning a country music fund-raising event sponsored by the lodge which was to have taken place in a school facility.
FINDINGS IN BRIEF
The Shelby County Board of Education did not act consistent with the Kentucky Open Records Act. The Board of Education's reliance on KRS 61.878(1)(f) pertaining to records of law enforcement agencies was not justified because the letter requested is not a record of a law enforcement agency; the contents of the letter were not compiled in the process of detecting and investigating statutory or regulatory violations; and the disclosure of the information contained within the letter will not harm the law enforcement 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. Nor is the letter correspondence with a private individual which may be excluded under KRS 61.878(1)(g).
FACTUAL BACKGROUND
Attorney Mark L. Miller, by letter dated October 11, 1990, made an open records request to inspect and copy a document in the custody of the Shelby County Board of Education on behalf of his client, a local Fraternal Order of Police lodge. Specifically, Mr. Miller requested a letter dated September 28, 1990 from Shelbyville Police Chief John Miller to Superintendent Mooneyhan concerning a country music show which was to have been put on by a Tennessee promoter, sponsored by the FOP lodge and have taken place at a school facility. Chief Miller, in the letter, attempted to discourage the school board from renting a facility to the show's promoter.
You responded on behalf of the Shelby County Board of Education, by letter of October 16, 1990, and denied Mr. Miller's request. You relied upon KRS 61.878(1)(f) as the basis for denial. You indicated, "This letter constitutes a record of the Shelbyville City Police and we are informed that [a police] investigation is under way concerning matters referred to in your correspondence. "
At the request of the undersigned Assistant Attorney General, you furnished our office a copy of the document in controversy. The document attorney Miller requested to inspect is a letter dated September 28, 1990, written on City of Shelbyville Division of Police letterhead addressed to Leon Mooneyhan, Superintendent, Shelby County Board of Education, from John Miller who is Chief of Police in Shelbyville.
In the letter Chief Miller disclosed that the Shelbyville Police Department was investigating Associated Marketing, a Tennessee company the local Fraternal Order of Police Lodge had contracted with to conduct and promote a country music show. Generally, Chief Miller expressed concern that Associated Marketing telephone solicitors had made false or misleading representations concerning the use of the proceeds from the event and discouraged the superintendent from making school facilities available for the show. He also enclosed a copy of a newspaper article concerning a cancelled show that was to have been held in Henry County sponsored by the samer FOP lodge and promoter. The Chief offered to appear before the Board of Education and give additional information.
The Police Chief's concerns about the fund-raising event are well known. Chief Miller was quoted in the local newspaper a few days after he wrote the letter, accusing Associated Marketing of using high-pressure tactics to sell tickets and disclosing that his department was investigating the company. In the newspaper article FOP Lodge President Vince Noble characterized the investigation as Miller's personal vendetta against the lodge based on a prior fund-raising event which occurred when Miller had been a lodge member. A copy of this newspaper article from the October 3, 1990 Shelbyville Sentinel-News is enclosed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in relevant part for the Attorney General to review, upon request, a denial of a request to inspect public records, and issue a written opinion stating whether an agency ". . . acted consistent with the provisions of KRS 61.870 to 61.884."
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 . . . . (emphasis added). 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.
As explained below, we are of the opinion your agency's reliance on KRS 61.878(1)(f) was not justified under the facts presented for review.
First, KRS 61.878(1)(f) concerns "records of law enforcement agencies or agencies involved in administrative adjudication. " Contrary to your assertion, the letter in question is not a record of the Shelbyville Police Department, which somehow was placed in the custody of the Shelby County Board of Education. It is, instead, a public record of the Board of Education, which was conducting no administrative investigation. The Board is not a law enforcement agency.
Second, the correspondence in question was not "complied in the process of detecting and investigation statutory or regulatory violations," nor does the letter disclose the identity of informants not otherwise known.
Finally, the release of the letter would not cause the "premature release of information to be used in a prospective law enforcement action or administrative adjudication. " Chief Miller's letter does no more than state the same concerns about the FOP fund-raising event he expressed to the local newspaper for publication in the article referred to above. The letter contained no information that could harm the police department by prematurely releasing secret information of the type envisioned by the General Assembly in enacting this exception. Even if the letter had contained this type of information, it has been made public by Chief Miller in his newspaper interview. Releasing the letter could in no way compromise an investigation because it had already been made known to the public.
We further note the letter appears to have been written by Chief Miller in his capacity as Chief of Police, and not in his personal capacity as a private citizen. Therefore, the exemption set forth at KRS 61.878(1)(g) which exempts among other things, "correspondence with private individuals," is not applicable, as you suggested in your letter of November 2, 1990, to our office.
It is understandable that the Board is reluctant to allow inspection of the letter you say was written in an effort to help the Shelby County School System avoid any potential embarrassment or liability, in case Chief Miller's concerns were correct. However, the basic policy of the Kentucky Open Records Act is "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4). Also, KRS 61.878(1)(f) provides in part that this exemption, "shall not be used by the custodian of the records to delay or impede the exercise of rights granted by [the open records act]."
The letter in question was written from a public official to a public official concerning a matter of interest to the public. It does not fall within any exception to the Open Records Act. It must, therefore, be turned over to attorney Mark Miller on behalf of his client, Shelby Metro FOP Lodge No. 51, pursuant to his open records request.
In conclusion, it is the opinion of the Attorney General that the Shelby County Board of Education did not act consistent with the provisions of KRS 61.870 to 61.884 in denying attorney Miller's request to inspect the letter from Chief Miller. The Board's reliance on KRS 61.878(1)(f) to withhold the letter was not justified. Nor would the Board be justified in withholding the letter based on KRS 61.878(1)(g).
As required by statute, a copy of this opinion is being mailed to Mark L. Miller, counsel for Shelby Metro Fraternal Order of Police, Lodge No. 51, who requested it. The Board has the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882, if it desires to appeal this opinion.
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