Request By:
Kimberly K. Greene
2000 Meidinger Tower
462 South Fourth Avenue Louisville, KY 40202Lt. Col. Michael J. Van Leuven
Lt. Col. Ky. ANG
Human Resources Officer
Kentucky Department of Military Affairs
Office of the Adjutant General
Boone National Guard Center
Frankfort, KY 40601-6168
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 Kentucky Department of Military Affairs violated the Open Records Act in denying Courier-Journal reporter Deborah Yetter's January 29, 2001, request for records pertaining to the Bluegrass Challenge Academy. 1 At issue is the Department's denial of her request for "a report by the criminal investigations division at Fort Knox of an investigation and findings regarding alleged problems at Bluegrass Challenge Academy." Having verified that the CID's investigation is ongoing, we affirm the Department's disposition of Ms. Yetter's request.
In a response dated February 2, 2001, Human Resources Officer Lt. Col. Michael J. Van Leuven advised Ms. Yetter that the Department of Military Affairs, Office of the Adjutant General, is "not the records custodian for the 'criminal investigations division at Fort Knox,'" and suggested that she "contact that agency directly concerning any alleged investigations they have conducted." Shortly thereafter, Kimberly K. Greene, an attorney representing The Courier-Journal , contacted Lt. Col. Van Leuven by telephone to make additional inquiries, and to clarify The Courier's position. Ms. Greene states that Lt. Col. Van Leuven agreed to conduct a search of the records of Bluegrass Challenge Academy, the Adjutant General's Office, and the Department of Military Affairs generally, to determine if the Department possessed any investigative reports prepared by the Criminal Investigations Division at Fort Knox. On February 16, Lt. Col. Van Leuven notified Ms. Greene:
With regard to any investigations (criminal), we can neither confirm nor deny their existence. Should we receive a completed/closed investigation, we will furnish same unless there is a federal prohibition concerning the release of same.
Lt. Col. Van Leuven restated this position in a letter directed to Ms. Greene's partner, R. Kenyon Meyer, reminding him that upon receipt of "a completed/closed investigation [KRS 61.878(1)(h)], we will furnish same unless there is a federal prohibition involved," and that "the records custodian and release authority for a closed/completed CID Investigation is the U.S. Army CID office." This appeal followed.
In her letter of appeal, Ms. Greene challenges the Department's refusal to confirm or deny the existence of an investigation, noting that a source has informed The Courier-Journal that "in fact a CID investigation report did exist, that it was in the possession of the Department of Military Affairs, and that a decision had been made not to pursue criminal charges as a result of the investigation." In addition, she questions the Department's reliance on KRS 61.878(1)(h) to withhold any such investigative reports. The Courier's investigation, Ms. Greene observes, "leads it to believe that the CID . . . report concerns a matter about which no investigation is ongoing . . . [and from which] no criminal charges will result," and that this information has been communicated to the Department. Finally, she rejects the implication that the CID report is exempt from disclosure because it was created by a federal agency. Relying on OAG 90-71 and OAG 91-56, Ms. Greene maintains that "who created the document is irrelevant," and that the exemptions available to federal agencies, under the federal Freedom of Information Act, are not available to the state Department of Military Affairs. It is her position that "because the Department of Military Affairs is in possession of the CID investigation report, it is subject to the Open Records Act and must be produced."
In a supplemental response, Lt. Col. Van Leuven generally denies the "incomplete/inaccurate allegations" in The Courier-Journal's appeal. Focusing on the origins of the report, and the applicability of KRS 61.878(1)(h) to it, he asserts:
In Ms. Greene's letter she seems to imply that who creates a record and who has possession and control of a Federal law enforcement record is not relevant. In addition, she does not address or distinguish between an ongoing/ active investigation record and a final/complete investigative record. We submit that a federal law enforcement record of an investigation could fall under the exception provided by KRS 61.878(1)(k). In addition, it should be noted that the U.S. Army installation located at Fort Knox is a federal enclave with exclusive federal jurisdiction. Essentially, without a waiver or agreement to the contrary, the state does not have jurisdiction on Fort Knox.
Our response to the various requests submitted by Ms. Greene, Ms. Yetter and Mr. Meyer for a copy of a Criminal Investigation Division, Record of Investigation, by the local office at Fort Knox has not changed. Under KRS 61.878(1)(h) we do not comment on any "active/ongoing/ open investigation(s)," which is defined as any investigation(s) that we have not been provided with a final report from the investigating office or organization. Until we receive a final report, the investigation is considered to be open/active and ongoing. Upon the completion of any criminal investigation, we would be provided a final written report. At that time, the investigation is considered to be closed and a final decision on what, if any, further action will be taken by our agency is made. Also, at that time, a redacted copy would be provided to anyone who submitted a proper request under the appropriate state or federal statutes. There are numerous OAG opinions that provide, in essence, that it is proper to withhold information concerning an "active" or "ongoing" case or investigation. We will only cite a few for your information: OAG 92-109; 91-092; 91-50; 91 6; 90-143.
In closing, Lt. Col. Van Leuven states that as of March 15, 2001, the Department "has not received a closed/completed/final copy of any CID investigation concerning the Bluegrass Challenge Academy," and that his disposition of The Courier's requests "were in compliance with the Kentucky Open Records Act. " Recognizing that the Department cannot produce for inspection a record that it does not possess, we affirm its denial of The Courier-Journal's request, but find that neither KRS 61.878(1)(h), nor any other provision of the Open Records Act, authorizes it to refuse to comment on the existence or nonexistence of a responsive record. Anticipating that at some point in the future, the Department will receive a copy of the report, we analyze the arguments it advances in support of whole or partial denial.
KRS 61.880(1)
A public agency's duties in responding to an open records request are clearly defined in KRS 61.880(1). That statute provides, in part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In Edmondson v. Alig, Ky. App., 92 S.W.2d 856 (1996), the Kentucky Court of Appeals broadly construed this language to require "the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson at 858. "A limited and perfunctory response" to an open records request, the court concluded, does not "even remotely comp[y] with the requirements of the Act. . . ." Id . Nor, in our view, does an equivocal and nonresponsive response.
In 99-ORD-39, the Attorney General rejected an agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded. There, we focused on our duties under KRS 61.880(2), declining to give deference to the agency's sexual harassment policy, and proceeded to an adjudication of the matter on the facts disclosed. Here, we focus on the Department's duties under KRS 61.880(1) , and in particular, the duty to unequivocally state that a requested record does or does not exist, and, if it exists but cannot be disclosed, the statutory basis or other circumstances justifying nondisclosure. OAG 86-38; OAG 90-26; OAG 91-101; 96-ORD-164; 97-ORD-16; 01-ORD-138. In the appeal before us, those circumstances consist of the Department's inability to produce for inspection a final report because no final report has been transmitted to it by CID, whose investigation is still active. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a response that does not clearly so state is deficient. As this office recently noted, an agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9.
KRS 61.878(1)(h) and (k)
Once in the possession of the Department of Military Affairs, the investigative report generated by CID becomes a public record for purposes of the Open Records Act, notwithstanding the fact that it originated in a federal agency. KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency ." (Emphasis added.) See, for example, 00-ORD-168 (a letter generated by a federal agency in response to a federal employee's request for post-employment advice, and subsequently furnished to a state agency as a means of demonstrating that employment of the former federal employee would not create a conflict of interest is a public record for open records purposes). Whether that record is an open record that must be released for public inspection, or otherwise qualifies for exclusion under the Act, is a closer question.
The Department relies on KRS 61.878(1)(k) as a basis for denying access to the final CID investigative report. That exception authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation [.]
In OAG 91-56, this office was asked to rule on the propriety of the Cabinet for Human Resources' reliance on KRS 61.878(1)(k), then codified as KRS 61.878(1)(i), and 5 U.S.C. Sec. 522(b)(7)(E), as well as 45 C.F.R. Sec. 5.63, to deny a requester access to an audit program in CHR's custody. There we held that because CHR is a state and not a federal agency, its records are subject to the Kentucky Open Records Act. At page 3 we reasoned:
[The Freedom of Information Act] has no force as to state records, only the records of federal agency. By invoking KRS 61.878(1)[(k)] and 5 U.S.C.A. 552(b), [CHR has] attempted to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other.
Accordingly, [CHR's] reliance on 5 U.S.C.A. 552(b)(7)(E) and 45 C.F.R. Sec. 5.63 is misplaced.
In support, we cited OAG 83-256, an early open records decision in which the Attorney General opined:
The Federal Freedom of Information Act, 5 U.S.C. Sec. 552, the Privacy Act, 5 U.S.C. Sec. 552(1) and 18 U.S.C. Sec. 1905 have no bearing on the question being dealt with in this opinion. Those federal statutes deal with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat those statutes as though they were state statutes. Those statutes make no pretense of controlling state records, either to make them open or to make them closed. Federal cases interpreting those statutes are of no help in this opinion.
OAG 83-256, p. 4; see also, OAG 80-519 (holding that the Freedom of Information Act and the Privacy Act have "no force as to state records, only the records of federal agencies" ); 96-ORD-244 (holding that search warrant issued by the FBI to a Legislative Research Commission employee was not excluded from public inspection by operation of KRS 61.878(1)(k) and the Freedom of Information Act) . Based on these authorities, we find that the Department's reliance on KRS 61.878(1)(k) is misplaced. Unless the Department of Military Affairs can cite a separate federal law or regulation prohibiting disclosure of the CID investigative report, the report does not qualify for exclusion under this exception.
As an additional basis for denying The Courier-Journal access to the CID investigative report, the Department invokes KRS 61.878(1)(h). That exemption 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 . . . . 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 KRS 61.878(1)(h), 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 (emphasis added); 97-ORD-93; 99-ORD-162; 00-ORD-196. Thus, "the need for [the] degree of specificity contemplated by the legislature in KRS 61.880(1) and the Kentucky Court of Appeals in Edmondson v. Alig , above is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. " 00-ORD-196, p. 3. 2
In the appeal before us, the question of whether the CID investigation of Bluegrass Challenge Academy has been concluded is in dispute. An unidentified source has advised The Courier-Journal that a CID investigative report exists, that it is in the possession of the Department of Military Affairs, and that a decision has been made not to prosecute. The Department refutes these allegations, asserting that as of March 15, 2001, it has not received" a closed/completed/final copy of any CID investigation concerning the Bluegrass Challenge Academy . . . ." In a conversation with the undersigned conducted on March 28, 2001, Marc Raimondi, Director of Public Affairs for the United States Army Criminal Investigation Command at Ft. Belvoir, Virginia, confirmed that the CID's investigation of Bluegrass Challenge Academy is ongoing, and has not been concluded. When the investigation is concluded, and a copy of CID's final report is transmitted to the Department of Military Affairs, the Department may rely on KRS 61.878(1)(h) if its denial is articulated in terms of the requirements of that exception relative to prospective enforcement action or administrative adjudication. If no enforcement action is contemplated, the report must be disclosed "unless exempted by other provisions of KRS 61.870 to 61.884 . . . ." KRS 61.878(1)(h).
Conclusion
Because the CID's investigation of the Bluegrass Challenge Academy has not been concluded, and no final report generated or transmitted to the Department of Military Affairs, we affirm the Department's denial of The Courier-Journal's request. When the investigation is closed, we find that any copy of the investigative report transmitted to the Department is a public record for purposes of the Open Records Act, and must be disclosed unless, pursuant to KRS 61.878(1)(k), disclosure of the report is prohibited by federal law or regulation, or, pursuant to KRS 61.878(1)(h), the disclosure of the report will harm the agencies "by premature release of information to be used in prospective law enforcement action or administrative adjudication. "
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 proceedings.
Footnotes
Footnotes
1 The Kentucky Department of Military Affairs' website, located at www.military.state.ky.us , identifies the Bluegrass Challenge Academy as a program for at-risk youth conducted at Fort Knox, Kentucky. Its mission is to train and mentor selected high school dropouts in a quasi-military environment. It is funded by the U.S. Department of Defense and the Commonwealth of Kentucky, and is operated by the National Guard Bureau Office of Public Affairs as a Governor's Special Project "under the Office of the Adjutant General."
2 See, for example, 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof); 96-ORD-37 (Finance and Administration Cabinet failed to make requisite showing relative to invocation of KRS 61.878(1)(h) in denying access to records relating to licensees of Kentucky Board of Respiratory care); 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992) (University improperly relied on KRS 61.878(1)(h) in denying newspaper access to records compiled in response to NCAA investigation since it was not a law enforcement agency or an agency involved in administrative adjudication and therefore did not satisfy the first part of the three part test). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. "Consistent with the principle that free and open examination of public records is in the public interest, KRS 61.878(1)(h), like each of the eleven other exceptions, must be 'strictly construed' to afford the broadest possible public access. KRS 61.871." 97-ORD-129, p. 2.