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 State Police properly relied on KRS 61.878(1)(h) and 61.872(6) in denying Lexington Herald-Leader reporter Jack Brammer's September 19, 2002 request for the "[n]ames of all members of Gov. Paul Patton's security detail in 1997, 1998, and 1999." For the reasons that follow, we find that KSP's reliance on the cited exemptions was misplaced.
In a response dated September 20, 2002, KSP's Custodian of Records, Diane H. Smith, denied Mr. Brammer's request. Relying on KRS 61.878(1)(h), she explained:
As a matter of departmental policy, we do not publish the names of officers assigned to the Executive Security Detail because publicizing the identity of the officers could pose an undue security risk to both the officers and the parties they are assigned to protect. The assignment of an Executive Security Officer is analogous to that of an undercover officer in that they do not wear uniforms and are not readily identifiable to the public.
The Attorney General has opined that the disclosure of records is not mandatory if release of the information would pose a significant security risk or undermine enforcement of the law. 95-ORD-121. Disclosure of the information requested would clearly place an unreasonable burden on this agency under KRS 61.872(6) by compromising the nature of Executive Security operations. Information which would be detrimental to law enforcement efforts, if disclosed, is recognized as confidential. 97-ORD-132. This information is therefore exempt from disclosure under KRS 61.878(1)(h).
Shortly after receiving KSP's denial of his request, Mr. Brammer initiated this appeal asserting that the exemptions relied upon and the authorities cited are inapposite.
In supplemental correspondence directed to this office following commencement of Mr. Brammer's appeal, KSP Legal Counsel James M. Herrick amplified on the agency's position. Acknowledging that security concerns are not implicated by disclosure of the identities of officers no longer assigned to the Executive Security detail, Mr. Herrick indicated that "KSP is not averse to disclosing the names of those officers who were assigned to Executive Security from 1997 to 1999 but are no longer assigned there," but reaffirmed KSP's denial of access to records identifying officers still assigned to the detail. He explained:
[A]ll such officers are sworn peace officers under KRS Chapter 16, who have the duty to enforce the criminal laws of the Commonwealth of Kentucky at all times, particularly if a violation is committed in their presence. Also, Executive Security officers do not wear uniforms and are not readily identifiable by the public.
Although this request was made only for the names of the Executive Security officers, the disclosure and publication of those names is tantamount to disclosure of such information as home addresses and photographs, which are easily obtainable from other public sources without the need for recourse to the Open Records Law. Once the identity of current Executive Security officers became generally known, the risk would greatly increase that those officers would be subjected to blackmail for sensitive information, such as the location or destination of the Governor at any given time. The critical police function of protecting the security of high-level state officials and their families should not be undermined by compromising the anonymity of the officers who serve in that capacity.
It is clear from 95-ORD-121 that the Open Records Law must be construed in a way that "promotes the public's interest in security." This interest would be significantly compromised if the KSP had to disclose the identities of present Executive Security officers, because of the security risk to the officers and the persons they protect. The staffing of the detail might have to be changed each time the names were disclosed, creating an unreasonable burden under KRS 61.872(6).
If the law-enforcement function of protecting public officials is imperiled, the agency is clearly harmed under KRS 61.878(1)(h). While this subsection does contemplate the eventual release of records, that is consistent with the KSP's willingness to provide the names of officers who are no longer assigned to Executive Security, and with "the need to insure the effectiveness of covert law enforcement operations." 97-ORD-132.
On this basis, KSP "urge[d] that the denial of inspection be upheld" as it relates to officers currently assigned to the Executive Security detail. Because we do not believe that the language of the cited provisions, and KSP's interpretation thereof, supports the denial of Mr. Brammer's request, we do not uphold the denial.
We begin by noting that Mr. Brammer's request was not framed as a request for reasonably described public records, but was instead framed as a request for information. In an early open records opinion, the Attorney General recognized that "[t]he purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; see also OAG 87-84, 93-ORD-51, and 02-ORD-175 (and authorities cited therein). This position is premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"); KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added). KSP did not, however, deny Mr. Brammer's request on this basis, but instead proceeded to deny him access to records containing the information sought on the basis of KRS 61.878(1)(h) and 61.872(6). We do not find the arguments advanced under either of these exemptions persuasive.
In support of its position that the protection afforded by KRS 61.878(1)(h) extends to records identifying officers currently assigned to the Executive Security detail, KSP relies on 97-ORD-129. However, in that decision the Attorney General rejected the law enforcement agency's reliance on KRS 61.878(1)(h) reasoning:
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. KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
In order to successfully raise this exception, 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 have been met. 95-ORD-95; 96-ORD-155.
97-ORD-129, p. 2, 3.
Here, as in 97-ORD-129, the agency against which the appeal is brought, KSP, is a law enforcement agency and therefore satisfies the first part of the three part test. However, here, as in 97-ORD-129, it cannot be persuasively argued that the disputed records, identifying officers currently assigned to the Executive Security detail, are records "compiled in the process of detecting and investigating statutory or regulatory violations." As we noted at page 3 of 97-ORD-129:
This language has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations. This interpretation finds support in the next full sentence following this language which states, "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." This statement contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action.
Here, as in 97-ORD-129, KSP's reliance on KRS 61.878(1)(h) to authorize nondisclosure of records identifying officers currently assigned to the Executive Security detail "suggests a liberal construction of the exception which is not supported by its express terms." KSP having failed to satisfy the second part of the three part test found in KRS 61.878(1)(h), we conclude that these records do not qualify for exclusion under KRS 61.878(1)(h).
Unlike our decision in 97-ORD-129, this appeal cannot be resolved in favor of the agency on the basis of KRS 61.872(6) as construed in 95-ORD-121. KSP relies on the latter provision to support its argument that the public's interest in security "would be significantly compromised if the KSP had to disclose the identities of present Executive Security officers, because of the security risk to the officers and the persons they protect." It is KSP's position that "[t]he staffing of the detail might have to be changed each time the names were disclosed, creating an unreasonable burden under KRS 61.872(6)."
In 95-ORD-121 the Attorney General held that a jail could withhold its policy and procedures manual pursuant to KRS 61.872(6) "if release of [the manual] would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of [the manual] , or information contained therein." 95-ORD-121, p. 8. A request for a policy and procedures manual, this office observed:
may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination on a government vault or safe] nondisclosure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.
Moreover, it seems incongruous to attribute to the General Assembly an intention to require public agency revelation of internal manuals, or other public records, which would facilitate violation of the law and undermine its enforcement. In the instant appeal, disclosure of portions of the Policy and Procedures Manual affecting the security and safety of inmates, staff, and the public would significantly increase the risk of harm to these individuals and facilitate escape. This cannot have been the legislature's goal. Consistent with the rule of statutory construction articulated in Renaker v Commonwealth, Ky. App., 889 S.W.2d 819 (1994) and elsewhere, that statute should not be construed so as to bring about an absurd or unreasonable result, we conclude that the Open Records Law must be given a construction that is reasonable, and promotes the public's interest in security and administrative order. To that end, we find that the law, by and through the cited exemptions, prohibits disclosure of public records containing information the disclosure of which would significantly compromise that interest.
95-ORD-121, p. 8, 9.
Guided by the principle that the clear and convincing standard which is built into KRS 61.872(6) "is sufficient to discourage abuse by public agencies," this office has affirmed agency denial of access on this statutory basis and legal theory on only two other occasions. In 97-ORD-129, we affirmed the Hardin County Drug Task Force's denial of a request for that portion of its manual dealing with the use of informants, reasoning:
[A] policy and procedures manual dealing with the use of informants implicates many of the same concerns [at issue in 95-ORD-121]. Disclosure to the public 'would necessarily allow those members of the public who want to engage in such illegal activities the opportunity to learn law enforcement agency investigative tactics in order to better hide and protect their illegal activities.' As a consequence, the Task Force would be forced to overhaul existing policies and procedures each time the records were requested and released. While [the requester's] purpose in requesting access to the manual [here] is no doubt entirely legitimate, if he is permitted access to it so too must all other requesters, whatever their purpose might be . . . . The Task Force may properly withhold those portions of the manual the disclosure of which would necessitate an immediate revision in policy and practice to insure personal and public security and avoid subversion of the law.
97-ORD-129, p. 6. Similarly, in 99-ORD-83 we affirmed the Owensboro Police Department's Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city to the extent that the information contained therein could be used to circumvent the law thus necessitating an immediate revision of policy.
Conversely, in 99-ORD-51 we held that the Revenue Cabinet failed to make a sufficient showing under KRS 61.872(6) that disclosure of the Kentucky Revenue Protest and Appeals Guidelines was unduly burdensome notwithstanding the claim that disclosure would necessitate "constant revision" of the guidelines:
The document at issue . . . explains to the Cabinet employees that the purpose of the guidelines is to simplify and document the Cabinet's protest and appeals procedures for better understanding and consistent treatment throughout the Cabinet and to provide consistent service to all Kentucky taxpayers. As noted above, our review of the document does not reveal any Cabinet auditing criteria or analytical method of a particularly sensitive nature, the disclosure of which would undermine its ability to administer the tax laws. Moreover, the Cabinet does not explain how any specific provision of the document would bring about this result.
99-ORD-51, p. 3.
Applying the same reasoning, in 98-ORD-131 we held that a police department failed to make an adequate showing that nondisclosure of a detective's work schedule was authorized under KRS 61.872(6). We rejected the department's argument that disclosure of the detective's work schedule might undermine his effectiveness and place him in peril, observing:
The record before us is devoid of evidence that the detective's effectiveness would be undermined, or that he would be imperiled in the discharge of his particular duties, by disclosure of his work schedule for three separate dates preceding the open records request. We therefore cannot affirm the Police Department's denial of [the] request on these facts, but leave for another day the question of whether the work schedule of police detectives engaged in particularly sensitive work may properly be withheld under KRS 61.872(6).
98-ORD-131, p. 4. We noted that if a detective were engaged in undercover activities, and disclosure of his work schedule would place him at a substantial risk of personal harm, invocation of KRS 61.872(6) to authorize nondisclosure of the work schedule might be warranted.
We do not believe that disclosure of the names of officers currently assigned to the Executive Security detail would place those officers at any greater or lesser risk of personal harm than that to which they are already exposed. Compare Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998) (disclosure of undercover narcotics officers names and photographs, inter alia, placed officers at substantial risk of serious bodily harm giving rise to agency liability for disclosure under 42 U.S.C. Section 1983). Nor do we believe that the speculative risk that officers might be blackmailed, in order to ascertain the Governor's whereabouts, if their identities are disclosed satisfies the clear and convincing standard that appears in KRS 61.872(6). Moreover, countless other members of the Governor's staff know of the Governor's whereabouts. Furthermore, given the largely public character of the Governor's duties, and the fact that most of his appearances are announced in advance, we fail to see how such disclosure will compromise his security.
In sum, we find that KSP has failed to make an adequate showing that disclosure of records reflecting the names of officers currently assigned to the Executive Security detail would imperil the Governor, or the officers themselves, thus necessitating reassignment of the officers each time their identities are disclosed in response to an open records request. Although their positions may not be entirely analogous to the typical public agency employee, we believe that access to records reflecting the names of officers currently assigned to the Executive Security detail is governed by well-established legal authority requiring disclosure. See, e.g., OAG 76-717; OAG 85-94; OAG 86-38; OAG 87-76; OAG 88-13; OAG 89-97; OAG 90-19; 93-ORD-144; 94-ORD-26. They are, ultimately, public employees conducting public business at public expense and release of records reflecting their identities will not, in our view, compromise a significant governmental interest or otherwise prove unreasonably burdensome within the meaning of KRS 61.872(6). We therefore conclude that KSP improperly relied on KRS 61.872(6), as well as KRS 61.878(1)(h), in denying Mr. Brammer's 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.
Jack BrammerLexington Herald-LeaderCapital Bureau612A Shelby St.Frankfort, KY 40601
Diane H. SmithOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
James HerrickOffice of General CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601