Request By:
Mr. Christopher W. Johnson
Assistant General Counsel
Justice Cabinet
Bush Building, Second Floor
403 Wapping Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. David A. Friedman, Litigation Director for the Legal Aid Society, Inc., in Louisville, Kentucky, has appealed to the Attorney General, pursuant to KRS 61.880, your denial of his request to inspect eight categories of documents in the possession of the Justice Cabinet. Those documents are identified as:
(1) All correspondence between the Commonwealth of Kentucky and the United States Office of Juvenile and Delinquency Prevention, since January 1, 1984.
(2) All memoranda of communication between the Commonwealth of Kentucky and Office of Juvenile and Delinquency Prevention, since January 1, 1984.
(3) All grant applications, proposals, responses and budgets by, for or from the Commonwealth of Kentucky under the Juvenile Justice and Delinquency Prevention Act, since January 1, 1984;
(4) All annual compliance reports, since January 1, 1980, under the Juvenile Justice and Delinquency Prevention Act.
(5) All plans or documents prepared for the Office of Juvenile Justice and Delinquency Prevention since January 1, 1980, relating to carrying out the purposes of the Juvenile Justice and Delinquency Prevention Act.
(6) All logs, reports or similar documents completed by, or on behalf of, local jails in Kentucky, since January 1, 1984, relating to the Juvenile Justice and Delinquency Prevention Act.
(7) All logs, reports or similar documents completed by, or on behalf of, juvenile detention facilities, since January 1, 1984, concerning the Juvenile Justice and Delinquency Prevention Act.
(8) All logs, reports or similar documents completed by, or on behalf of, the Cabinet for Human Resources, since January 1, 1984, concerning the Juvenile Justice and Delinquency Prevention Act.
You denied Mr. Friedman's request in a letter dated November 15, 1991, relying on KRS 61.878(1)(a), (f), (g), (h), (i), and (j). In addition, you maintained that Mr. Friedman's letter constituted a blanket request for information which the Justice Cabinet was not obligated to honor because it would place an unreasonable burden on the Cabinet, requiring it produce voluminous records. Citing KRS 61.872(5); OAG 76-375; OAG 89-8. You explained that since Mr. Friedman's request:
Is for 'all' documents in eight separate categories, this agency must preview each individual document to determine if the exemptions set forth in KRS 61.878 are applicable in order to separate exempted material from nonexempt material before public inspection could be permitted. OAG 83-386. Your request is in effect to inspect all records concerning the Juvenile Justice and Delinquency Prevention Act. It is estimated that there are several hundred, if not in excess of one thousand, multi-document files which are included in the third enumerated category of your request alone. It has been opined that a request to inspect 800 records in 77 files was properly denied as unreasonable. OAG 89-88; KRS 61.878(4).
As additional grounds for the nondisclosure of the requested documents, you invoke KRS 61.878(1)(f) and (i). You indicate that the documents relate to litigation now pending in the United States District Court, and are the subject of a motion for a protective order filed on behalf of Justice Secretary Ray Corns. It is your position that "records connected to ongoing lawsuits are covered by the so-called 'litigation exception,' KRS 61.878(1)(f), and are not subject to inspection. OAG 88-25, 88-27, 88-31." Citing OAG 89-65, you note that the Open Records Act is not intended to replace the orderly process of discovery. Since the records are governed by the rules of discovery in pending litigation, you argue that they are in the constructive custody of the federal court and subject to the exclusive jurisdiction of the court. Citing KRS 61.878(1)(i); Krause v. Rhodes, 846 F.2d 1040 (6th Cir. 1988).
Finally, you note that portions of the records Mr. Friedman seeks to inspect are exempt pursuant to KRS 61.878(1)(a), relating to records containing information of a personal nature, KRS 61.878(l)(g) and (h), relating to preliminary drafts, notes, and correspondence with private individuals, as well as preliminary recommendations and memoranda in which opinions are expressed or policies formulated, and KRS 61.878(1) (j), relating to public records the disclosure of which is prohibited by enactment of the General Assembly.
In his letter of appeal to this Office, Mr. Friedman objects to your reliance on KRS 61.878(1)(f) and (i), arguing that (1)(f):
Only applies to records '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 prospective law enforcement action or administrative adjudication. ' OAG 89-79. This section has absolutely nothing to do with civil litigation against justice personnel for non-law enforcement matters. Indeed, the Cabinet's argument essentially reduces the scope of the Open Records Act whenever civil litigation is pending, a result plainly in conflict with the Act's broad purposes. It would further illogically make otherwise accessible documents available to all persons except those in litigation against the Cabinet.
Similarly, Mr. Friedman maintains that you improperly invoked KRS 61.878(1)(i), inasmuch as that provision pertains to documents "whose disclosure is prohibited by federal law or regulation, a condition clearly inapplicable here." (Emphasis in original.) He distinguishes the cases you cite, which deal with disclosure in the face of an existing court order protecting the material, noting that no such order has been entered in the pending litigation.
Mr. Friedman refutes your invocation of KRS 61.872(5) generally, and with specific reference to the records requested. Citing OAG 89-20, he argues that an application can be deemed neither a blanket request nor unduly burdensome because of volume "where the records are of a limited class usually cumulated by month or year. . . ." It is his position that any burden which might be imposed could be overcome by allowing inspection of a small portion of the records at a time. Nevertheless, he asserts that you have failed to establish, by clear and convincing evidence, that the application places an unreasonable burden on the Cabinet because you "lumped" all eight requests together in your denial. Acknowledging that certain documents among those requested might be exempt from public inspection pursuant to KRS 61.878(1)(a), (g), (h), and (j), he states that you are obligated, pursuant to KRS 61.878(4), to separate the excepted material from the nonexempted material, and to make the latter available for his inspection.
Mr. Friedman asks that this Office review your denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your actions were only partially consistent with the Act.
OPINION OF THE ATTORNEY GENERAL
We begin with an analysis of KRS 61.878(1)(f). That provision authorizes the nondisclosure of:
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;
Citing OAG 88-25, OAG 88-27, and OAG 88-31, you maintain that because the records requested are "connected to ongoing law suits, they fall within the parameters of the 'so called litigation exception,'" and are therefore not subject to inspection. KRS 61.878(1)(f) is typically invoked in the context of a pending investigation, whether conducted by a law enforcement agency or an agency involved in administrative adjudication, and is only properly invoked "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. " Thus, in OAG 87-15, this Office upheld the decision of the Kentucky State Police, withholding an investigative report prepared by KSP following a fatal accident, since the investigation was not complete and no decision had been made as to whether legal action would be taken. As we noted at p. 3 of that opinion:
Numerous other opinions of this Office have concluded that investigative files and reports maintained by criminal justice agencies are not subject to inspection until after prosecution is completed or a determination not to prosecute has been made.
Citing OAG 86-81, OAG 86-59, and OAG 85-93; See also, OAG 87-35, OAG 90-143; OAG 91-35; OAG 91-50; oag 91-92; OAG 91-132.
Consistent with the rule of strict construction generally applicable to the exemptions to the Open Records Act, KRS 61.878(1)(f) clearly provides 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." It is the opinion of this Office that your invocation of KRS 61.878(1)(f) significantly expands the scope of that exemption. The litigation to which the requested records pertain involves a civil action against Justice Cabinet personnel. You fail to establish that disclosure of the records would harm the Cabinet by revealing the identity of informants or result in the premature release of information to be used in a prospective law enforcement action or administrative adjudication. OAG 88-31, OAG 88-27, and OAG 88-25, which you cite in support of your position, are not dispositive of this issue since each appeal arose in the context of contemplated law enforcement or administrative action and the requested documents were "compiled in the process of detecting and investigating statutory and regulatory violations."
Moreover, we are not persuaded by your argument that the Open Records Act "is not to replace the orderly process of discovery made pursuant to court rules." Citing OAG 89-65. At page three of that opinion, we held:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under open records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery.
The facts presented in the instant appeal do not justify invocation of KRS 61.878(1)(f), and your reliance on that provision was therefore improper.
Similarly, your reliance on KRS 61.878(1)(i), which authorizes the nonrelease of, "All public records or information the disclosure of which is prohibited by federal law or regulation," is misplaced. It is your position that the records Mr. Friedman seeks to inspect:
Are exempt from inspection pursuant to KRS 61.878(1)(i) in that federal law is clear that records which are covered by discovery rules in pending litigation are in the constructive custody of the Federal Court and release of these records is subject to the exclusive jurisdiction of the court. Krause v. Rhodes, 535 F.Supp. 338 (Ohio 1979) [sic]; Wagar v. U.S. Dept. of Justice, 846 F.2d 1040 (6th Cir. 1988).
In addition, you note that the requested records are the subject of motion for a protective order currently pending in the United States District Court for the Western District of Kentucky at Paducah.
As Mr. Friedman notes in his letter of appeal to this Office, in both Krause and Wagar the district courts presiding over the actions had issued orders directing the disposition of records obtained in discovery. In Wagar, the district court ordered plaintiff to destroy all copies of documents obtained from the defendant through discovery. Subsequently, a newspaper reporter initiated an action under the Freedom of Information Act, 5 USC § 552, seeking disclosure of those documents. On appeal, the Sixth Circuit upheld the district court's opinion dismissing the action based upon its finding that the court's order precluded the plaintiff from producing the documents. Similarly, in Krause the district court held that discovery materials which had not been made a part of the official court record were in the constructive custody of the court for purposes of the protective order issued by the court banning publication of the materials.
This Office has adopted the position of the federal courts. In OAG 91-121, we addressed the question whether a public agency is required to disseminate to the public records which a court has placed under a seal of confidentiality, answering in the negative. Citing OAG 89-22 and OAG 80-353, we held that the Open Records Act in no way supercedes a protective order entered by a court of competent jurisdiction when a public agency is properly before the court as a party to the litigation. The entry of a protective order removes a document within its terms from the application of the Act.
Because no protective order has been issued in the civil action out of which this open records request arises, we do not believe this line of authority is dispositive. On January 21, 1991, the undersigned Assistant Attorney General contacted the clerk of the federal district court for the Western District of Kentucky to ascertain whether the court had ruled on defendant's motion. No order had been issued on that date. Inasmuch as you cite no other federal law or regulation prohibiting disclosure, we find that your invocation of KRS 61.878(1)(i) was improper.
Turning to your first line of defense, you cite KRS 61.872(5), which provides:
If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
This provision must be read in tandem with KRS 61.878(4) which states:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and made the non-excepted material available for examination.
You assert that Mr. Friedman's request is "in effect [a request] to inspect all records concerning the Juvenile Justice and Delinquency Prevention Act, " and estimate that with respect to only the third category of the eight requested categories of records there are several hundred, if not in excess of one thousand multi-document files. You further explain that in order to separate any materials which are exempted from public inspection by KRS 61.878(1)(a), (g), (h), and (j) from nonexempt materials, the Cabinet must preview each individual document. On its face, Mr. Friedman's request would appear to place an unreasonable burden on your agency.
Nevertheless, KRS 61.872(5) provides that refusal under this section must be sustained by clear and convincing evidence. We do not believe that you have met this burden of proof with respect to each category of documents requested. Your correctly note that this Office opined, in OAG 89-88, that a request to inspect 800 records in 77 files was properly denied under KRS 61.878(5). This opinion clearly supports your position with respect to the third enumerated category of documents, "All grant applications, proposals, responses and budgets by, for or from the Commonwealth of Kentucky under the Juvenile Justice and Delinquency Prevention Act. " We therefore find that you properly denied that portion of Mr. Friedman's appeal pursuant to KRS 61.872(5) and KRS 61.878(5). As we noted in OAG 90-24, at p. 12:
Where the request for records is broad . . ., and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information, we believe constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872(5).
In OAG 90-112, we discussed the practical difficulty of assessing the propriety of an agency's reliance on KRS 61.872(5). Clearly, mere invocation of the provision is not sufficient to sustain the agency's burden of proof. OAG 89-79. On the other hand, where an agency "explains the volume involved . . ., and the difficulty associated with separating non-confidential material given the number of records involved," and furnishes information summarizing the records in question, it sustains this burden through careful consideration and an effort to provide assistance. OAG 89-88, at p. 4. Your response to Mr. Friedman's request in categories one, two, four, five, six, seven, and eight, falls somewhere between these two extremes.
We concur with you in your view that the following categories of requested documents are overly broad insofar as they request information on a subject without specifying a certain document:
(1) All correspondence between the Commonwealth of Kentucky and the United States Office of Juvenile and Delinquency Prevention, since January 1, 1984.
(2) All memoranda of communication between the Commonwealth of Kentucky and Office of Juvenile and Delinquency Prevention, since January 1, 1984.
(3) All grant applications, proposals, responses and budgets by, for or from the Commonwealth of Kentucky under the Juvenile Justice and Delinquency Prevention Act, since January 1, 1984;
(5) All plans or documents prepared for the Office of Juvenile Justice and Delinquency Prevention since January 1, 1980, relating to carrying out the purposes of the Juvenile Justice and Delinquency Prevention Act.
(6) All logs, reports or similar documents completed by, or on behalf of, local jails in Kentucky, since January 1, 1984, relating to the Juvenile Justice and Delinquency Prevention Act.
(7) All logs, reports or similar documents completed by, or on behalf of, juvenile detention facilities, since January 1, 1984, concerning the Juvenile Justice and Delinquency Prevention Act.
(8) All logs, reports or similar documents completed by, or on behalf of, the Cabinet for Human Resources, since January 1, 1984, concerning the Juvenile Justice and Delinquency Prevention Act.
OAG 84-342; OAG 86-65; OAG 89-8; OAG 91-58. Mr. Friedman does not limit his request to a particular subject, but instead requests all records of a particular character, e.g., correspondence and memoranda of communication, relating to the Juvenile Justice and Delinquency Prevention Act for the period since January 1, 1984. If Mr. Friedman could identify specific areas of concern or interest, the Cabinet could access the relevant documents, and, if not otherwise exempt, make them available for his inspection.
Given the vast number of documents which fall within the parameters of Mr. Friedman's request and the difficulties which would attend any attempt to separate exempt from nonexempt materials, we conclude that your reliance on KRS 61.872(5) was proper with respect to categories one, two, three, five, six, seven, and eight. As we noted at p. 2 of OAG 83-386:
Although KRS 61.878(3) [now 61-878(5)] requires separation of exempted and non-exempted material, the agency is not required to separate exempted and non-exempted materials in broad categories of records.
We do not believe that you have sustained your burden of establishing, by clear and convincing evidence, that production of the documents identified in category four would place an unreasonable burden on the Cabinet. In category four, Mr. Friedman requested access to specific documents, i.e., annual compliance reports prepared since January 1, 1980. This request could be satisfied by production of 11 or 12 documents, and redaction of exempt materials should not constitute an undue burden. The Cabinet should make these documents available for inspection.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. David Friedman. Both the Cabinet and Mr. Friedman may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880.