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 Lottery Corporation's (KLC) denial of David M. Cross's request for "any and all information including witness statements, computations, and any and all other information available regarding an investigation concerning Static Grocery, at Route 1, Albany, Clinton County, Kentucky 42602, involving Jessica Jolena Brown aka Jo Brown," violated the Open Records Act. For the reasons that follow, we conclude the response of the KLC did not violate the Act.
Responding on behalf of KLC, Joetta Bowman, Paralegal, denied Mr. Cross's request, advising him:
At this time the KLC is unable to comply with your request. Our Security Department has advised me that this matter has, in fact, been reported to the Kentucky State Police, and is currently under investigation. Under KRS 61.878(1)(h) "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 premature release of information to be used in a prospective law enforcement action" are exempt from the requirements of the Open Records Act. Once the enforcement action is completed, we will be able to consider your request.
After receipt of Notification of this appeal and a copy of Mr. Cross's letter of appeal, Mary A. Maple, Goldberg & Simpson, on behalf of KLC, provided this office with a response to the issues raised in the appeal. Elaborating on the agency's initial response, Ms. Maple explained, in relevant part:
The request for information involving an investigation concerning Static Grocery and Jessica Joline [sic] Brown, a/k/a Jo Brown, is also a record of a law enforcement agency compiled in the process of investigating a statutory or regulatory violation and premature disclosure of the compiled information could arguably compromise investigation and subsequent enforcement action. As stated above, it is our understanding that the Kentucky State Police has not concluded its investigation and there may be subsequent enforcement action under the Lottery Statutes and perhaps other statutes as well. In the event that Ms. Brown is called to appear before the Grand Jury, premature disclosure of this information could seriously compromise the ability of the Grand Jury to effectively conduct its investigation and reach a conclusion.
?
In addition, the information gathered in this investigation and conveyed to the Kentucky State Police is preliminary in nature and did not give notice of a final action by KLC and thus exempt from the open records requirements pursuant to KRS 61.878(1)(i) and (j). Such investigation was conducted by the security department which has no independent authority to issue a binding decision but is required by KRS 154A.650(2)(e) to provide assistance to any law enforcement agency investigating a violation of this chapter. The information gathered was provided to the Kentucky State Police to assist them in their investigation.
This situation is analogous to the City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982). In that case, the Court of Appeals found that KRS 61.878(1)(i) and (j) was appropriate authority for the Louisville Police Internal Affairs Division to deny access to the internal affairs report. The KLC security division, like the Louisville Internal Affairs Division, reports suspected violations to the appropriate prosecutor or law enforcement agency regarding a violation of the Lottery statutes. The decision whether to pursue a criminal action or not rests with the law enforcement agency or appropriate prosecutor, not with the KLC. For the same reasons that the internal affairs reports were deemed to be exempt by the Kentucky Court of Appeals, the investigative records of the KLC should also be exempt from open records.
This information is also exempt under KRS 61.878(1)(l) which exempts public records or information which are prohibited from disclosure by the General Assembly. KRS 154A.040(1)(c) prohibits the disclosure of records which could impair or adversely impact the security of the KLC in the operation of the lottery or the security of the lottery retailers and exempts these records from open records. The term security as defined in KRS 154A.010(8)(a) includes "information that relates to detection or deterrence of, or could assist in the perpetration of, crimes against the corporation or its retailers, their locations, or their employees." Release of specific sales information could lead to certain retailers being targeted for theft and should therefore be exempt. Also, specific information concerning this investigation could be used in devising future theft or fraud schemes against retailers, since it would disclose which information from retailers is monitored as an indication of fraud or theft. Disclosure of such information could assist in the perpetration of crimes against KLC or against its retailers.
We are asked to determine whether the KLC's denial of Mr. Cross's request for copies of the investigative materials gathered by the KLC and conveyed to the Kentucky State Police for use in its investigation concerning Static Grocery and Jessica Jolena Brown, aka Jo Brown, violated the Open Records Act. For the reasons that follow, we conclude that the KLC properly denied the request under authority of KRS 61.878(1)(h).
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.
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 97-ORD-52, we held the Cabinet for Public Protection properly relied upon KRS 61.878(1)(h) in denying a 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."
The facts before us indicate that both KLC and the Kentucky State Police are conducting investigations into activities relating to the lottery, Static Grocery, and Jessica Jolena Brown, aka Jo Brown. Diane H. Smith, Official Custodian of Records, Kentucky State Police, has advised and confirmed to this office that the State Police's investigation of the matter is ongoing and that premature release of the KLC materials provided to that agency would compromise its investigation. Under these facts and circumstances, we conclude that KLC properly denied Mr. Cross's request on the basis of KRS 61.878(1)(h) and the concurrent jurisdiction of the two agencies over the subject matter of the investigations.
Because the foregoing is dispositive of this appeal, we need not address other bases relied upon by the KLC in support of its denial of the request.
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.
David M. Cross200E. Cumberland StreetP.O. Box 70Albany, KY 42602
William MayKentucky Lottery Corporation1011 W. Main StreetLouisville, KY 40202-2623
Joetta BowmanKentucky Lottery Corporation1011 W. Main StreetLouisville, KY 40202-2623
Mary A. MapleGoldberg & Simpson3000 National City Tower101 South Fifth StreetLouisville, KY 40202-3118
Diane H. SmithOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort KY 40601