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 Office of the Governor properly relied on Section 77 of the Constitution of Kentucky, along with KRS 61.878(1)(a), (i), and (j), in denying Associated Press political writer Charles Wolfe's November 14, 2000, request to inspect "applications for executive pardons and/or commutations, plus correspondence supporting or opposing the applications." For the reasons that follow, we find that Section 77, and the ends of justice, mandate disclosure of the application and supporting materials upon receipt in the Governor's Office, subject to the constitutional right to nondisclosure of certain types of private information recognized in Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) and Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998). Further, we find that the statement of reasons must be disclosed upon execution of the written instrument granting or denying the application for pardon.
In a response dated November 17, 2000, Deputy General Counsel Michael T. Alexander denied Mr. Wolfe's request. Relying on KRS 61.878(1)(a) and (i), and OAG 90-113, he argued that Section 77 of the Constitution of Kentucky does not require disclosure "until such time as the Governor renders a decision and the documents are filed with the Secretary of State." This appeal followed.
In a supplemental response directed to this office following commencement of Mr. Wolfe's appeal, General Counsel Denis B. Fleming, Jr., elaborated on the Governor's position. Mr. Fleming restated the arguments advanced by Mr. Alexander, emphasizing that "[u]nder the plain language of Section 77 . . . Mr. Wolfe is not entitled to inspect pardon application records until final action has been taken by the Governor regarding an application as evidenced his filing an Executive Order with the Secretary of State granting or denying a request." He explained:
First, it is clear that Section 77 contains its own open records provision in that the Governor's decision regarding a pardon request and the accompanying application, after filing, "shall always be open to public inspection. " In the case of Kuprion v. Fitzgerald, Ky., 888 SW 2d 679 (1994), the Court held that the Kentucky Constitution is, in matters of state law, the supreme law of the Commonwealth to which all acts of the legislature, the judiciary and any government are subordinate. Therefore, Section 77 is the exclusive authority governing public inspection of pardon application records which are subject secondarily, if at all, to the provisions of the Kentucky Open Records Act.
Continuing, Mr. Fleming asserted that the pardoning power rests exclusively in the hands of the Governor, and is not subject to statutory regulation or judicial review. Citing Commonwealth v. Hall, Ky., 126 SW 2d 1056, 1057 (1939) and Jackson v. Rose, Ky., 3 SW 2d 641, 643 (1928).
It was the position of the Office of Governor that:
The exercise of this power must be evidenced by the issuance of an Executive Order, which is an official act of the sovereign requiring delivery to the Secretary of State under Section 91 of the Kentucky Constitution. This section provides, in pertinent part, "The duties of all these officers shall be such as may be prescribed by law, and the Secretary of State shall keep a fair register of and attest all the official acts of the Governor. . " (emphasis added). Once the Executive Order granting a pardon has been filed in the Executive Journal maintained by the Secretary of State, which constitutes the final act in the exercise of gubernatorial discretion, it cannot be revoked. Adkins v. Commonwealth, Ky., 23 SW 2d 277 (1929). It is for this very reason that the public's right to inspection, as evidenced by the very sequence of the language set forth in Section 77, is subsequent to the mandatory phrase of " he shall file . . ." Thus, while the public has a right to review the actions of the Governor, it does not have the right to obtain pardon records in the midst of his deliberative process as he exercises his constitutional discretion. In other words, it is the actions of the Governor in the form of a final decision which are subject to a review of the people, not the personal, preliminary and sometimes heartfelt and intimate particulars of those who come before him for mercy.
On this basis, Mr. Fleming declared that "Governor Patton should . . . be able to maintain the discretion exercised by all previous Governors of the Commonwealth that permits the unfettered consideration of pardon request." While decisions made on applications for pardon "will, as has been the practice for nearly 200 years, have a statement of reasons therefore filed with the application with the Secretary of State," Mr. Fleming urged that "[u]ntil such a decision is reached, . . . applications must be considered preliminary and in suspense awaiting consideration in the Governor's sole discretion."
As additional bases for denying inspection of the records identified in Mr. Wolfe's request, the Governor invoked KRS 61.878(1)(i) and (j), excluding from the mandatory disclosure provisions of the Open Records Act:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Analogizing the application materials maintained by the Office of the Governor to executive clemency files maintained by the Pardon Attorney on behalf of the President of the United States, and excluded from the disclosure requirements of the federal Freedom of Information Act by operation of 28 CFR 16.79, Mr. Fleming argued that premature release of application materials in the hands of the Governor would similarly compromise the investigative and decision-making process.
Finally, the Governor relied on KRS 61.878(1)(a) as authority for the decision to deny Mr. Wolfe access to these records. That exemption permits public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Mr. Fleming observed:
[A]n applicant for pardon should be prepared for a detailed inquiry into his/her personal background and current activities for the purpose of establishing their readiness for relief. Among the many factors entering into a recommended determination are the nature and recentness of the offense, the applicant's prior and/or subsequent criminal record, any specific hardships the applicant may be suffering by reason of the conviction, and the nature and extent of an applicant's post-conviction involvement in community service, charitable or other meritorious activities. Regarding the latter, submission of information concerning the applicant's noteworthy contribution to his/her community is encouraged. Recommendations from the sentencing judges, prosecuting attorneys, victims and members of a victim's family, as well as past and present employers should be submitted whenever possible. In most instances, the information gathered during the investigative and evaluative process is deeply personal and sensitive. The integrity of this process therefore depends upon candid disclosure.
Upon these authorities, and with particular emphasis on "the plain language of Section 77 of Kentucky's Constitution," the Office of the Governor concluded that Mr. Wolfe was not entitled to inspect pardon application records. We acknowledge that Section 77 is subject to conflicting interpretations, including the interpretation advanced by Mr. Fleming, but find that the cited authorities do not support the position taken by the Office of the Governor. In so holding, we do not impute any irregularity or improper motive to that office, but resolve this appeal in the manner we believe to be consonant with the letter and the spirit of Section 77.
Historical perspective on the pardoning power
The pardoning power has been described as "a living fossil, a relic from the days when an all-powerful monarch possessed the power to punish and to remit punishment as an act of mercy. " Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 575 (1991). The earliest pardons were, in the words of Justice Holmes, "private act[s] of grace from an individual happening to possess power." Biddle v. Perovich, 274 U.S. 480, 486 (1927). The American model of executive clemency derived from the English practice wherein the clemency power was "a central component of the royal prerogative." Id. at 586. The framers of the Constitution "aligned themselves with a vision of the power that was decidedly British in nature" when they vested exclusive authority in the chief executive to grant reprieves and pardons in Article II, Section 2, of the Constitution of the United States. Id. at 589. So too, the new states generally assigned the power to the executive branch in drafting their constitutions. Today:
The governor retains control of the clemency power in most jurisdictions, typically pursuant to the state constitution. Twenty-nine states place the clemency power in the governor alone, although most of those states have established an advisory body that makes nonbinding recommendations to the chief executive. [Footnote omitted.] In sixteen states, the governor shares the power to make clemency decisions with an administrative board or panel. [Footnote omitted.] In the five remaining states, an administrative panel, usually appointed by the governor, has the principal authority to make clemency decisions. [Footnote omitted.]
Id. at 604. Kentucky is identified as one of only eight states where exclusive authority is reposed in the Governor with no board to advise or recommend, and one of only sixteen states where there is no standard periodic aggregate pardon reporting requirement. Clifford Dorne, Ph.D. and Kenneth Gewerth, Ph.D., Mercy in a Climate or Retributive Justice: Interpretations from a National Survey of Executive Clemency Procedures, 25 New Eng. J. Crim. & Civ. Confinement 413, Table 3 and Table 11 (1999). Because "pardon and clemency decisions appear to be made well below the surface of public scrutiny," and have often been politicized, they are the subject of considerable criticism and widespread public debate. Id. at 415. In recent years, the problem has become as much one of disuse as misuse. Kathleen Dean Moore, Pardon for Good and Sufficient Reasons, 27 U. Rich. L. Rev. 281 (1993). 1
Evolution of the pardoning power in the Constitutions of Kentucky.
Indeed, "one of the propelling reasons for the call of [the 1890 Constitutional Convention] by the people" of Kentucky was the perceived evil growing out of the exercise of the pardon power. Vol. l, p. 1339, Debates, Constitutional Convention 1890. The constitutions of Kentucky adopted in 1792 and in 1799 echoed the language of the Constitution of the United States, 2 providing:
He shall have power to remit fines and forfeitures, and grant reprieves and pardons, except in cases of impeachment; in cases of treason he shall have power to grant reprieves until the end of the next session of the General Assembly, in whom the power of pardoning shall be vested.
Ky. Const of 1792 Article 2, Section 10. 3 In 1849, the drafters of Kentucky's third constitution added the proviso that the Governor "shall have no power to remit the fees of the Clerk, Sheriff, or Commonwealth's Attorney in penal or criminal cases," Ky. Const of 1849 Article 3, Section 10, but each of these constitutions was silent on the issue of public disclosure of applications for pardon submitted to the Governor and the statement of reasons for his decisions thereon.
Prompted by concerns about abuses in the exercise of the pardoning power, in November, 1890, the delegates to the Constitutional Convention adopted the amendments to the Constitution that added the language we undertake to analyze today:
And he shall file with each application a statement of the reasons for his decision thereon, which application and statement shall always be open for public inspection.
The comments of the delegates to the 1890 convention shed considerable light on their intention in adopting the amendments.
Delegate Charles J. Bronston of Fayette County, championed the cause of openness. On November 17, 1890, he declared:
Let the Governor publish those letters to the world; and let each and every man within the borders of Kentucky read them . . . . To prevent the indiscriminate application to the Governor . . . let it be understood that when a letter is written, it is not to go into a hole in the Executive Office, but it is to be spread on the record, and read by each and every man in the Commonwealth of Kentucky.
Vol. l, p. 1325, Debates, Constitutional Convention 1890. And later:
[T]ake the Executives out of the murky pool wherein these men, from personal interests, are constantly pouring into their ears false statements and making the law trampled under foot and degraded. Place them above it. Let them understand that they are to be held responsible.
Vol. I, p. 1327, Debates, Constitutional Convention 1890. The amendments were seen as a way to "improve [the] people . . .[by] enlighten[ing] that people," Vol. l, p. 1252, and as a means of "purifying the evidence that may be brought before [the Governor] ," Vol. l, p. 1288, "that those interested may know his reasons for so exercising this high and dangerous trust, and that he may be shielded from misrepresentations by those interested in securing his clemency. " Vol. l, p. 1340. In sum, Delegate Jep C. Jonson of McLean County stated, "[T]he act of the Governor in making these remissions is a public act, and . . . no sort of private influence can properly enter into his consideration as to whether he ought to grant or withhold a pardon. " Vol. 2, p. 1523. From these debates, we must infer that the intent of the delegates was to maximize accountability through public access.
Section 77 as controlling authority
In its present form, the Constitution of Kentucky provides that the Governor:
Shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection. In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the Clerk, Sheriff or Commonwealth's Attorney in penal or criminal cases.
Ky. Const. Section 77 (emphasis added). We agree with the Office of the Governor that the Constitution "is, in matters of state law, the supreme law of this Commonwealth to which all acts of the legislature, the judiciary and any government agent are subordinate" Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 681 (1994), and that Section 77 of the Constitution is the controlling authority in the appeal before us. We disagree with the Office of the Governor in its interpretation of the controlling constitutional authority, believing instead that the language of Section 77, coupled with the ultimate ends of justice, require the Governor to make application materials available for public inspection upon receipt in his office, and the statement of reasons thereon available for inspection immediately upon execution of the written instrument granting or denying pardon.
The language of the constitutional provision is clear. The application and statement of reasons "shall always be open to public inspection. " Ky. Const. Section 77 (emphasis added). Had the delegates intended that application materials only become available for inspection after a decision was reached, and a statement of reasons filed with the Secretary of State, they could have introduced language conditioning availability upon these acts. 4 Instead, the delegate purposefully chose the unconditional and temporally unbounded term "always," variously defined as "at every instance," "for all time," "at any time; at will," Webster's II New Riverside University Dictionary 98 (1988), and "at all times," "for all time; forever," and "at any time; in any event," The American Heritage Dictionary 26 (3d ed. 1994). In our view, the Governor's narrow construction of Section 77 is not supported by the express language of the constitutional provision, and does not reflect the delegates' intent.
Nor does his interpretation serve the ends of justice. In Adkins v Commonwealth, 232 Ky. 312, 23 S.W.2d 277 (1929), a case cited by the Office of the Governor, erroneously in our view, for the proposition that pardon application records do not become public until the Governor files his Executive Order granting or denying pardon with the Secretary of State, an individual convicted of possessing liquor drafted a petition for clemency to the mayor of the town in which he resided, and obtained the signatures of sixty influential citizens. He was subsequently charged with murder and prepared a new petition to the governor seeking a pardon for the latter crime. Substituting this petition for the earlier petition to the mayor, he attached the pages bearing the signatures of the influential citizens. The governor later testified that he would not have granted the pardon "but for his reliance on the representations contained in this forged petition . . . ." Adkins at 278. Acknowledging that "the courts have declined always to interfere with the executive in the exercise of the discretion vested in him by the Constitution, and a mere error of judgment, or even the grossest abuse in the exercise of his lawful authority, is not reviewable by the courts," Adkins at 279, the court nevertheless took the extraordinary measure of "annulling a pardon fraudulently procured" through its equity powers. Id. at 280. It was precisely this type of abuse that the delegates to the Constitutional Convention of 1890 were attempting to curb by making application materials available for public inspection at all times, and it is precisely for this reason that the ends of justice are best served if application materials are "spread on the record," and any misrepresentations are detected before the Governor irreversibly acts on the application.
Applicability of KRS 61.878(1)(i), (j), and (a)
Section 77 of the Constitution of Kentucky imposes an affirmative duty on the Office of the Governor to open for public inspection applications for pardons and statements of reasons thereon without restriction. As noted, this provision is the controlling authority in the appeal before us, and is subordinate to no act of the legislature, including the exceptions to the Open Records Act. Accordingly, we find no merit in the Governor's argument that KRS 61.878(1)(i) and (j) authorize nondisclosure of application materials because premature release of the materials might compromise the investigative and decision-making process. Prior open records decisions of this office construing these exceptions are inapposite. The analogy that his office attempts to draw to executive clemency files in the custody of the United States pardon attorney, access to which is restricted by operation of 28 CFR 16.79, is, in our view, flawed. The existence of a constitutional provision mandating disclosure of these materials at Section 77, and the absence of any legal restriction on access, distinguish the process in Kentucky from the process at the federal level. Such materials must be open to public inspection when they are submitted to the Governor, notwithstanding the fact that they are "in suspense awaiting consideration."
Nor does KRS 61.878(1)(a) operate as a bar to disclosure of application materials. The delegates to the Constitutional Convention of 1890 determined that the privacy interests of individuals submitting application materials must yield to the public interest in those materials, and the Constitution being the supreme law in the state, we are foreclosed from substituting our judgment for theirs. Nevertheless, recent developments in federal caselaw compel a reassessment. In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the Sixth Circuit Court of Appeals held that liability existed under 42 USC Section 1983 for disclosure of public records placing undercover police officers and their families at substantial risk of serious bodily harm. The court thus recognized a constitutional right to nondisclosure of certain types of private information that implicate a fundamental liberty interest. Similarly, in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), the Sixth Circuit held that the plaintiff raised a cognizable privacy claim under Section 1983 when a public official disclosed the intimate details of plaintiff's sexual assault. The court placed "public officials in this circuit . . . on notice that such a privacy right exists . . ." Bloch at 687. In light of these decisions, we believe that the application materials may be reviewed for the purpose of determining if they implicate a constitutionally protected privacy interest of the magnitude of Kallstrom and Bloch, and if so, those materials may be segregated from public inspection. This position should not be construed as an invitation to liberally censor application materials, given the primacy of Section 77 relative to the majority of the materials, but as a limited exception to the general rule of openness for the public good.
Conclusion
We reject the arguments advanced by the Office of the Governor in support of the position that pardon application materials may be withheld from public inspection until the Governor files his statement of reasons on each application with the Secretary of State. It is the opinion of the Attorney General that Section 77 of the Constitution of Kentucky mandates disclosure of the application materials, with the limited exceptions noted above, upon receipt, and the statement of reasons upon execution of the written instrument granting or denying pardon. This position is consistent with the intent of the delegates to the Constitutional Convention of 1890 in framing Section 77, and best serves the ends of justice.
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.
Charles WolfeAssociated PressThe State CapitolFrankfort, KY 40601
Mike AlexanderDeputy General CounselOffice of the Governor 700 Capitol AvenueSuite 100Frankfort, KY 40601
Denis B. Fleming, Jr.General CounselOffice of the Governor 700 Capitol AvenueSuite 100Frankfort, KY 40601
Footnotes
Footnotes
1 Mr. Fleming acknowledges that "as a matter of practice, the majority of pardon application requests are never officially ruled upon" in this state. As a means of "avoid[ing] potential embarrassment that would . . . ensue from a publicly disclosed pardon request denial . . . [and] the release of information which could jeopardize the integrity of the investigative process," these applications are "held in abeyance pending final official determination."
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2 Article II, Section 2 of the Constitution of the United States provides:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. [Emphasis added.]
3 Only minor variations exist between the First and Second Constitution, and these variations are restricted to capitalization, punctuation, and the substitution of the term "which" for "whom" in the final clause.
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4 For example, Section 77 might have read "which application and statement shall be open to public inspection after he makes his decision and files his statement of reasons thereon with the Secretary of State. "
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