Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Athletic Commission violated the Open Records Act in partially denying the October 1, 2001 request of Tamara Todd Cotton to inspect various records regarding a boxing match between Greg Page and Dale Crow held March 9, 2001 at Peel's Palace in Erlanger, Kentucky.
By letter dated October 3, 2001, Nancy L. Black, Executive Director, Kentucky Athletic Commission, partially denied Ms. Cotton's request, advising her:
As you may know the issue referenced in your correspondence, i.e. the boxing match held March 9, 2001, between Dale Crow and Greg Page, is still under investigation by the Kentucky Athletic Commission. Therefore, many of the documents requested are exempt from disclosure under KRS 61.878(1)(h), as records of an agency involved in administrative adjudication and compiled in the process of detecting and investigating statutory or regulatory violations, since the disclosure of the information would harm the agency by premature release of information to be used in a prospective administrative adjudication.
Your request is extensive and varied, and not all fall within this exemption. The staff is currently gathering the documents that are responsive to your requests and once that task is complete the Commission will immediately provide copies of all responsive documents which are not exempted from the Open Records Act, at the cost of $ .10 per page.
By follow-up letter to Ms. Cotton, dated October 23, 2001, Ms. Black advised:
Please find enclosed the documents in possession of the Athletic Commission which are responsive to your Open Records Request, and which are not excluded from production under the Open Records Act pursuant to KRS 61.878(1)(h). The Athletic Commission is in the process of investigating, for potential investigative adjudication, complaints regarding the promoter involved in the bout in question. Premature release of the Commission's investigative file at the present time would materially harm the Athletic Commission's administrative proceedings. Once the investigation is complete and the administrative action is final, those documents may be obtained upon a subsequent open records request.
Aside from the documents specifically excepted, pursuant to KRS 61.878(1)(h), the Athletic Commission makes the non-excepted material available pursuant to KRS 61.878(4).
In his letter of appeal, Christopher P. Evensen asks this office to review the Commission's partial denial of all, but nine (9) of 78 specific requests. Mr. Evensen argues that the boxing match took place almost a year ago and the Commission had had ample time to conduct and complete its investigation and the requested information was not of the type which would materially harm the ongoing investigation, as the majority of the requested information related to records and material which must be maintained by the Commission pursuant to 201 KAR 27.
After receipt of notification of the appeal and Mr. Evensen's letter of appeal, Robert S. Jones, counsel for the Commission and Assistant Attorney General, provided this office with a response to the issues raised in the appeal. In his response, Mr. Jones explained, in pertinent part:
The Commission received the two complaints regarding the bout in question in March 2001, The complaints alleged numerous potential violations of KRS 229.010, et seq and KAR 27:005 et seq. , requiring extensive investigation on the part of the Commission. Furthermore, the complaint committee which was tasked with oversight of the investigation, meets only once every two months, normally on the same date as the Commission meets. Nevertheless, the Commission's initial investigation of the allegations was completed by late September 2001, and correspondence was issued to the complainants, Mr. Doolin and Ms. Love, dated October 1, 2001, responding to the questions they had raised. However, as noted specifically in those responses by the Commission, the Commission had yet to review the information to make a determination as to whether potential violations would be prosecuted through an administrative complaint against any licensee involved in the bout . . . .
Consequently, the only information regarding the bout in question which has not been provided in response to Ms. Cotton's Open Records Request, is information contained in the Commission's investigatory file. The Commission has yet to review that file for the purpose of determining whether a complaint will be issued. The Commission has had one meeting since the investigation was completed in October. Unfortunately, no complaint review committee meeting could be held due to the absence of certain members of the committee. The Commission is next scheduled to meet on February 21, 2001. It is anticipated that on or before that date the complaint review committee will meet and make a determination as to whether as administrative complaint against any of its licensees will be issued. If no action is taken, the investigation will be closed and the file will be produced per Open Records Act. However, should the complaint review committee choose to pursue an enforcement action against one of its licensees as a result of this bout, document will remain subject to the exceptions provided within KRS 61.878(1)(h).
?
Ms. Cotton's only complaint regarding the investigation is she believes it has taken too long. As outlined above, the Commission has acted promptly to investigate this action and it is proceeding as quickly as its schedule allows to make a final determination as to the action it will take as a result of the investigation. It should be noted there is no allegation that the Commission has failed to act for the purpose of delaying disclosure of the records in question. It is clearly apparent from the nature of the information sought from the Commission, that disclosure of this information would substantially impair the Commission's prosecution of an administrative complaint against one of its licensees, if information were prematurely disclosed. Counterbalancing this state interest is Ms. Cotton's complaint that it has taken several months to investigate the complaints. This basis alone simply is not sufficient to abrogate the exception relied upon by the Commission in its initial response to her Open Records Request.
We are asked to determine whether the response of the Commission violated the Open Records Act. For the reasons that follow, we conclude it did not.
We refer the parties to 97-ORD-52 and 02-ORD-4. The first decision involved the Public Protection and Regulation Cabinet's denial of a request for records relating to an internal investigation of violations of alcohol beverage control laws conducted by the Cabinet and subsequently turned over to the Attorney General's Public Corruption Unit. The Cabinet denied the request on the basis of KRS 61.878(1)(h), and we affirmed after establishing that the Public Corruption Unit's investigation was ongoing and that the Unit had determined that "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." 97-ORD-52, p. 3.
In 02-ORD-4, we held Department for Medicaid Services properly denied blanket request for records pertaining to an investigation of a doctor pursuant to KRS 61.878(1)(h), where investigation had been turned over to Attorney General, was ongoing, and premature disclosure of requested records would compromise its investigation. We believe that 97-ORD-52 and 02-ORD-4, and the authorities cited therein, are dispositive of the instant appeal.
In the instant case, the Commission denied that portion of Ms. Cotton's request that asked for a copy of its investigative file on the bases that the investigation was ongoing and that disclosure of this information would substantially impair the Commission's prosecution of an administrative complaint against one of its licensees, if information were prematurely disclosed. We therefore conclude that the Commission properly denied Ms. Cotton's requests on the basis of KRS 61.878(1)(h); 97-ORD-52; and 02-ORD-4.
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.