Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Transportation Cabinet violated the Open Records Act in denying a request by Mark Hebert, WHAS-TV, to inspect a copy of a grand jury subpoena which had been served on the Cabinet. The subpoena was issued pursuant to an investigation by the Federal Bureau of Investigation (FBI) and the Kentucky Attorney General into activities within the Cabinet's Division of Drivers Licensing. For the reasons that follow, we conclude that the Cabinet properly denied the request under KRS 61.878(1)(h). However, unless the Cabinet can affirmatively establish that the harm it argued would result from the premature disclosure of the subpoena still exists, it must make the document available for Mr. Hebert's inspection.
By letter dated August 13, 2001, Mark Hebert, WHAS-TV, requested to inspect the following documents:
All subpoenas issued to Transportation Cabinet from any investigating agency or Grand Jury in the past seven days.
By letter dated August 14, 2001, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records denied Mr. Hebert's request stating, in relevant part:
This agency is in receipt of your Open Records Request for copies of all subpoenas received by this Cabinet in the last seven days. Be advised that your request is denied. KRS 61.878(1)(h) specifically exempts from disclosure "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. "
Further, where there is concurrent jurisdiction between two agencies and where they both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in an investigation.
Lastly, be advised that this agency does receive subpoenas from District Courts for routine certified driving history records to be used in DUI prosecutions. Should you desire to copy or inspect these, please call this office for a convenient time for such appointment.
In a supplemental response directed to this office following Mr. Hebert's commencement of the appeal, Assistant General Counsel Todd Shipp advised that the record that Mr. Hebert had requested to inspect and which was at issue in this appeal was a Grand Jury subpoena served on the Cabinet by the Federal Bureau of Investigation. Elaborating on the Cabinet's denial of the request, Mr. Shipp explained:
First, there are three agencies involved in administrative and criminal investigation (s) into activities within the Division of Driver Licensing of the Kentucky Transportation Cabinet. It is true, this agency does not engage itself in investigative law enforcement. However, this agency does engage in internal investigative activities that could ultimately reach personnel actions in administrative hearings. This is the case in this instance. Further, the Federal Bureau of Investigation and the Office of the Kentucky Attorney General are conducting joint criminal investigation (s) into these same actions. Each of the three agencies are cooperating with each other as much as possible to investigate these activities. Does this mean that a criminal or administrative actions will occur or take place? Certainly not, but KRS 61.878(1)(h) clearly exempts from disclosure 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. As noted in Skaggs v. Redford, 844 SW 2d 389 (1993) this exemption in the Open Records Act should be construed in a manner sufficiently broad to protect a legitimate state interest. There are several decisions of your office that upholds this exemption.
Second, where there is concurrent jurisdiction between two agencies, and where they both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in an investigation. The exemption clearly apples to this agency as much as the other two.
Third, contrary to Mr. Hebert's "sources," both the Attorney General and Federal Bureau of Investigation have asked that the subpoena be withheld from disclosure to the general public. The law enforcement agencies have made their own determination and have formally made this request of the Transportation Cabinet. A subpoena is far different than a mere letter and a Grand Jury request is more than simple correspondence. The agencies involved should be allowed to conduct the investigation that is being carried out without premature release of information that could unduly harm the investigative source, and may very well cast individuals falsely and prematurely in the public light. Mr. Hebert discounts the seriousness of the matter.
The Open Records law was not drafted to allow this to happen. Thus it is strongly moved that these three agencies involved herein be allowed to conduct its investigation to completion prior to release. Upon completion, then Mr. Hebert may make his request again at that time.
To facilitate our review and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 3, we asked the Cabinet to provide this office with a copy of the record in dispute for an in camera review. Although we cannot disclose the contents, we can disclose the general nature of the document. It is a federal grand jury subpoena served on the Cabinet by the FBI requesting the Cabinet to produce any and all records regarding certain named Cabinet employees and state contracts in which they were involved and communications between those employees and certain named companies and individuals doing business with the Cabinet.
In a cover letter, dated September 26, 2001, enclosed with the subpoena, the Cabinet advised that the FBI had asked that the Cabinet "maintain the subpoena and treat it as confidential and as part of their investigation." 1 The Cabinet stated that release of the subpoena "would alert persons who heretofore have not been notified that they or their actions are being looked into."
We are asked to determine whether the Cabinet's denial of Mr. Hebert's request to inspect a Grand Jury subpoena served on the agency by the FBI violated the Open Records Act. For the reasons that follow, we conclude that the Cabinet properly denied the request under authority of KRS 61.878(1)(h). However, unless the claimed harm that would result from premature disclosure of the subpoena still exists, the basis for the Cabinet's reliance on KRS 61.878(1)(h) no longer exists and the document should be made available for Mr. Hebert's inspection. 2
KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
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, in 01-ORD-59, 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.
The facts in this appeal indicate that three public agencies are conducting investigations relating to activities within the Division of Drivers Licensing of the Transportation Cabinet. The Cabinet is conducting an internal investigation of Division activities that could result in an administrative adjudication of personnel actions before the Personnel Cabinet. The FBI and the Kentucky Attorney General are investigating Division activities for possible violation of criminal statutes and prospective law enforcement action. Thus, we conclude that all three agencies meet the first requirement of the three-part test. The Cabinet, as an agency involved in an administrative adjudication, and the FBI and the Attorney General, as obvious law enforcement agencies.
As to the second requirement, the grand jury subpoena was not compiled by the Cabinet in the process of its administrative adjudication. It was compiled by the FBI in the conduct of that agency's criminal investigation. Thus, the subpoena does not qualify for exemption under KRS 61.878(1)(h) as part of the Cabinet's administrative adjudication.
Although the subpoena was not a record compiled by the Cabinet, it was received and retained by the agency in the normal course of business. Thus, we conclude it is a public record of the Cabinet. The question at issue here is whether it is open or exempt from disclosure under KRS 61.878(1)(h).
This office has held that where there is concurrent jurisdiction between two agencies, and they both have an interest in the matter being investigated, the records of one agency may be withheld, under authority of KRS 61.878(1)(h), if premature release of the requested records could harm the ongoing investigation and prospective law enforcement action of the other agency. 97-ORD-52; OAG 90-116.
In this regard, the Cabinet's original response to Mr. Hebert's request was insufficient to qualify the subpoena for exemption because it failed to set forth how either the investigation of the Cabinet or FBI would be harmed by release of the document. This office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11.
In its response to the letter of appeal, the Cabinet stated both the Attorney General and the FBI had requested that the subpoena be withheld from disclosure to the public. However, the Cabinet again fails to set forth how the FBI's investigation would be harmed by premature release of the subpoena.
In its September 26, 2001 cover letter, the Cabinet advised that the FBI had asked that the Cabinet "maintain the subpoena and treat it as confidential and as part of their investigation." The Cabinet further advised that release of the subpoena "would alert persons who heretofore have not been notified that they or their actions are being looked into." 3
Although the FBI may have requested the Cabinet to treat the subpoena as confidential, it does not become so under KRS 61.878(1)(h), unless the requisite showing of harm is made.
In 97-ORD-52, we held the Cabinet for Public Protection properly relied upon KRS 61.878(1)(h) in denying request for lists and inventories of evidence taken from persons suspected of violating the alcoholic beverage control laws. Although the records were prepared by the Cabinet in the ordinary course of business and were part of an internal Cabinet investigation, they had been turned over to the Attorney General and were then part of an ongoing Attorney General's investigation. The Attorney General advised that the premature release and inspection of the requested records could harm the ongoing investigation and prospective law enforcement action "by divulging information to subjects yet to be interviewed and which may have a bearing on the outcome of the case." We concluded that the Cabinet, under authority of KRS 61.878(1)(h), had properly denied access to the requested records.
In OAG 90-116, we held the Department of Agriculture properly relied upon KRS 61.878(1)[h] in denying access to a FBI subpoena while a federal investigation was pending. The U.S. Attorney's office had requested the Department not to release the subpoena and related records because it could harm the federal government's investigation "by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government."
In the instant case, the record at issue is a subpoena served on the Cabinet to produce agency records compiled in the ordinary course of business. Ordinarily, a subpoena is a public record subject to disclosure under the Open Records Act, unless it is exempt under an applicable provision of KRS 61.878(1).
In denying the request, the Cabinet relied upon KRS 61.878(1)(h), arguing that premature disclosure would harm the FBI's investigation. The Cabinet described the harm that would result from premature disclosure of the subpoena would be to "alert persons who heretofore have not been notified that they or their actions are being looked into."
In our view, this description of the harm establishes, as a minimum, that premature disclosure of the subpoena could possibly compromise the investigation by tipping off a possible witness or target. Thus, we conclude the Cabinet properly denied access to the subpoena under KRS 61.878(1)(h). However, if this potential of harm no longer exists, particularly in view of the time since it was served on the Cabinet in early August, 2001, the document should be made available for inspection.
By its express terms, KRS 61.878(1)(h) provides "[t]he 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."
The subpoena was served on the Cabinet on August 8, 2001. The Cabinet was to produce the requested documents before the grand jury on September 6, 2001. On September 26, 2001, the Cabinet advised this office that release of the subpoena would harm the FBI's investigation by alerting persons who had not been advised that they or their actions were being investigated.
Under the facts of this case, taking into account the passage of time since service of the subpoena and the time since the records were produced to the grand jury, the Cabinet's temporal basis for withholding disclosure of the subpoena may no longer exist. Accordingly, unless such harm still exists, the subpoena should be immediately made available for Mr. Hebert's inspection.
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.
Mark HebertWHAS 11520 West Chestnut StreetLouisville, KY 40202
Ed RobertsCommissionerDepartment of Administrative ServicesTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippOffice of General CounselTransportation CabinetState Office BuildingFrankfort, KY 40601
Footnotes
Footnotes
1 Although the office of the Attorney General is also investigating this matter, that office does not contest disclosure of the subpoena.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 Because the record at question in this appeal is a federal grand jury subpoena, Federal Criminal Rules of Criminal Procedure, Rule 6(e), issues relative to the secrecy of grand jury proceedings might be implicated. However, since the Cabinet did not rely on Rule 6(e)(6) and KRS 61.878(1)(k) in denying Mr. Hebert's request, we do not address those issues here.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 We remind the Cabinet , and all other public agencies, that a 40 KAR 1:030 Section 2 response should be viewed as an opportunity to supplement, and not to supplant, its original denial. The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself, and this office will only consider those supplemental responses which correct misstatements or misunderstandings which appear in, or arise from, the complainant's letter of appeal, or which offer additional support for the agency's original denial.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -