Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Clinton County Judge/Executive violated the Open Records Act in responding to David M. Cross's April 13, 1998, request to inspect Federal Emergency Management Agency records in the custody of Clinton County for the years 1993 through 1998. For the reasons that follow, we find that County Judge/Executive Charlene King failed to meet the statutory burden of proof in sustaining her denial of Mr. Cross's request.
On April 3, 1998, Mr. Cross requested access to:
All Federal Emergency Management Agency Emergency Food and Shelter records for the following fiscal years: 1993-1994; 1994-1995; 1995-1996; 1996-1997; 1997-1998 . . . [including] all board minutes, checks, receipts, invoices, memoranda, cut-off and disconnect notices, together with a list of all individuals or entities who received payments from the FEMA account during said years;
All information pertaining to an expenditure in the amount of $ 200.00 from the FEMA funds for the 1995-1996 fiscal year pertaining to the account of Wendall Ferguson; [sic] and any information or documentation regarding the allegation which has been made regarding the funds being applied to the account of Jerome Grider;
Additional information from KenGas regarding a printout of gas bill application and deposit slip pertaining to the above Ferguson-Grider incident;
All responses [Judge King has] made, in writing, regarding any of the allegations contained in the June 30, 1996 audit of Edward B. Hatchett Jr., State Auditor, exclusive of comments contained in the audit which was [sic] released to the general public;
All documentation contained in [Judge King's] office which would designate or place in charge of ANY county, state or federal program which was to be administered by or through [her] office [sic].
(Emphasis in original.)
In a letter dated April 8, 1998, Judge King denied Mr. Cross's request, advising him as follows:
KRS 61.878(1)(a), prohibits disclosure of information which disclosure would constitute a clearly unwarranted invasion of privacy.
KRS 61.878(1)(k), prohibits disclosure of information or records which is prohibited by federal law or regulation.
Disclosure of such records should also be prohibited when there is a criminal and/or administrative investigation in progress, so as not to jeopardize the integrity of the investigation.
Judge King did not describe the nature of the records withheld, or how the cited exceptions applied to those records. Nor did she cite the specific federal law or regulation prohibiting disclosure of the records, or the specific provision of the Open Records Act authorizing the withholding of records pertaining to an ongoing criminal or administrative investigation, namely KRS 61.878(1)(h). Shortly after receiving Judge King's letter, Mr. Cross initiated this open records appeal.
In a follow-up letter to this office, Clinton County Attorney James M. Lawson briefly elaborated on the County Judge's position. Although he again failed to describe the nature of the records withheld, and how the privacy interests implicated by disclosure outweighed the public's interest in inspecting those records, he did advance an argument in support of Judge King's reliance on KRS 61.878(1)(k). Citing 5 USC § 552(b)(6), the privacy exception to the federalFreedom of Information Act, Mr. Lawson explained:
While public assistance is exempt from protection and is considered public, private assistance is protected. In this situation, the information requested is protected by the Federal Access Law 5 USC § 552(b)(6) and other applicable laws or regulations in that information obtained for individual assistance, subject is this request [sic], is considered private.
Without citing any statutory basis for denying access to the records, Mr. Lawson again asserted that "if there is a criminal and/or administrative investigation in the requested matter, disclosure should be prohibited so as to jeopardize the integrity of the investigation." Mr. Lawson alluded to the Auditor's Report and a statement in that report that this matter has been turned over to the Attorney General for investigation.
In denying Mr. Cross's request, Judge King and Mr. Lawson have done little more than cite an exception to public inspection without adequately explaining its application to the disputed FEMA records. With regard to the last argument advanced in support of their denial of Mr. Cross's request, they have not even done this. KRS 61.880(1) mandates that "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. " In Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), the Court of Appeals interpreted this language to mean that an agency's custodian of records must "provide particular and detailed information in response to a request for documents." Noting that "the language of the statute directing agency action is exact," the court concluded that a "limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less . . . amount [] to substantial compliance." Id. In the absence of a particular and detailed explanation of how the cited exceptions apply to the records withheld, the Attorney General cannot affirm the County Judge's denial of Mr. Cross's request.
It is incumbent on public agencies which invoke KRS 61.878(1)(a) to authorize nondisclosure of public records to prove that the disputed records contain information of a personal nature, and that the public's interest in disclosure of that information is outweighed by the personal privacy interests which are implicated. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327 (1992); Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994). Despite the fact that the County Judge was given two opportunities to provide "particular and detailed information, " once in responding to Mr. Cross's original request, and again in responding to this office's notification of receipt of open records appeal, no such proof was presented to this office. We therefore conclude that the Office of the Clinton County Judge/Executive failed to meet its statutory burden of proof, codified at KRS 61.880(2)(c), in sustaining its denial of Mr. Cross's request on the basis of KRS 61.878(1)(a).
We reach the same conclusion with respect to Judge King's reliance on KRS 61.878(1)(k). In her original response, Judge King did not cite any federal law or regulation prohibiting disclosure of the requested records. In his supplemental response, Mr. Lawson cited 5 USC § 552 (b)(6) and "other applicable laws or regulations, " asserting that "information obtained for individual assistance . . . is considered private." Again, we are deprived of an opportunity to analyze this argument because the county has provided inadequate proof to support its position. We do not know the nature of the documentation maintained by the county to accomplish a function required by a federal agency.
What we do know is that 5 USC § 552, the Freedom of Information Act, applies to records maintained by federal agencies within the executive branch of the federal government, and not to records maintained by state governments. Justin D. Franklin and Robert F. Bouchard, Guidebook to the Freedom of Information and Privacy Acts at § 1.03 (Clark Boardman Callagher, 2d ed. 1986, supplement 1998). Thus, in OAG 91-56, this office held that the Cabinet for Human Resources violated the Open Records Act in withholding a federal audit program under authority of KRS 61.878 (1)(k) and 5 USC § 552(b)(7)(E), concluding that the Freedom of Information Act "has no force as to state records, only the records of federal agencies" and that the Cabinet had improperly "attempted to engraft onto the state act, the federal exemptions." OAG 91-56, p. 3. We referred to an earlier opinion of this office in which the Attorney General held:
The Federal Freedom of Information Act, 5 U.S.C. § 552, . . . [has] no bearing on the [open records] question being dealt with in this opinion. [That] federal statute [] deal[s] with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat [that] statute[] as though [it] were [a] state statute[]. [That] statute[] make[s] no pretense of controlling state records, either to make them open or to make them closed.
OAG 83-256, p. 4; see also, OAG 80-519 (holding that the Federal Privacy Act has no effect as to state records maintained by the Department for Human Resources and relating to payment to providers of health care through the Kentucky Medical Assistance Program); 97-ORD-170 (holding that the Federal Privacy Act does not shield Section 8 housing inspection reports in the hands of the Housing Authority of Jefferson County from public inspection) . Having failed to identify a specific federal statute or regulation prohibiting disclosure of the records which Mr. Cross requested, we find that the County Judge's response was substantively deficient, and that her denial of the request on the basis of KRS 61.878(1)(k) constituted a violation of the Open Records Act.
Turning to the final argument which the Clinton County Judge/Executive advanced, we find that that argument is both procedurally and substantively flawed. Both Judge King and Mr. Lawson alluded to a possible criminal or administrative investigation, asserting that release of the records could jeopardize the integrity of that investigation. Neither cited the relevant exception to public inspection, KRS 61.878(1)(h). That statute authorizes 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. 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 construing this provision, the Attorney General has observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, p. 2, 3.
Judge King's invocation of the cited exception represents a liberal interpretation of KRS 61.878(1)(h) which is not warranted by its express language. She fails to offer proof as to any of the three parts of the test set forth in 95-ORD-95. Indeed, she fails to affirmatively assert that an investigation is ongoing, and can only speculate on the risk of harm to such an investigation. Again, the Office of the Clinton County Judge/Executive failed to meet its burden of proof in denying Mr. Cross access to the requested records on this basis.
In sum, we find that in the absence of sufficient proof or legal authority supporting nondisclosure of the records which Mr. Cross requested, we have no alternative but to find that the Office of the Clinton County Judge/Executive's blanket denial of that request constituted a violation of the Open Records Act. Judge King has not met the statutory burden of proof relative to nondisclosure of all or any portion of FEMA records under KRS 61.878(1)(a), KRS 61.878(1)(h), or KRS 61.878(1)(k). Accordingly, her office must either disclose these records or challenge this decision in circuit court.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.