Request By:
Jon L. Fleischaker
Dismore & Shohl LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202Ellen M. Hesen
General Counsel
Cabinet for Health Services
275 East Main Street
Frankfort, KY 40601John H. Walker
Assistant General Counsel
Cabinet for Health Services
275 East Main Street
Frankfort, KY 40601Ed Roberts
Commissioner
Department of Administrative Services
And Custodian of Records
Transportation Cabinet
State Office Building
Frankfort, KY 40601Todd Shipp
Assistant General Counsel
Transportation Cabinet
State Office Building
Frankfort, KY 40601William May
General Counsel
Kentucky Lottery Corporation
1011 West Main Street
Louisville, KY 40202-2623Mary A. Maple
Goldberg & Simpson
1000 National City Tower
101 South Fifth Street
Louisville, KY 40202
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
These matters, having been presented to the Attorney General in three separate appeals but presenting identical questions of law, are consolidated for purposes of adjudication under KRS 61.880(2). The question presented in this consolidated appeal is whether the Cabinet for Health Services, the Transportation Cabinet, and the Kentucky Lottery Corporation properly relied on KRS 61.878(1)(h) in denying Courier-Journal reporter Tom Loftus's three separate but identical requests for copies of any subpoenas and related correspondence pertaining to the investigation of Governor Paul Patton and possible wrongdoing within state agencies based on allegations made by Tina Conner and others. For the reasons that follow, we affirm all three agencies' denials, under authority of KRS 61.878(1)(h), of the request for a copy of the Federal Grand Jury subpoena served on each agency by the Federal Bureau of Investigation (FBI).
By separate letters, dated October 9, 2002, Mr. Loftus submitted identical open records requests to each of the three agencies involved in this appeal, requesting copies of any and all subpoenas served on each agency "by the Kentucky Attorney General's Office, the FBI, the U.S. Attorney's Office or other state and federal agencies. This request seeks copies of any subpoenas and any correspondence or attachments to the subpoenas. "
By separate letters, each agency denied Mr. Loftus's request under authority of KRS 61.878(1)(h). 1
By letter dated October 10, 2002, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, Transportation Cabinet, denied the request, advising:
We are in receipt of your request for any subpoenas and related correspondence or attachments pertaining to the investigation of Governor Paul Patton.
Attached please find the letter received by this Cabinet concerning the subpoena at issue from the Federal Bureau of Investigation. As you can see, the primary investigative agency has requested nondisclosure of it due to the potential harm that could result to their investigation.
Our decision to withhold the requested subpoena is consistent with 01-ORD-219 (also enclosed).
The letter from the FBI, referred to in Mr. Roberts's response, is a letter dated October 9, 2002, addressed to Pat Foley, General Counsel, Transportation Cabinet, from T. Stephen Tidwell, Special Agent in Charge, and signed by T. Clay Mason, Supervisor, which states:
On October 9, 2002, our office served a Federal Grand Jury subpoena on your organization requesting particular information involving certain contracts, individuals, documents, and entities. As this matter is continuing, the disclosure of the information in this subpoena would be detrimental to the investigation. As such we request your organization not disclose the information in the subpoena until further notice.
By letter dated October 11, 2002, Ellen M. Hesen, General Counsel, Cabinet for Health Services, denied the request, stating:
This will acknowledge receipt of your open records request for a copy of any subpoena served upon the Cabinet by the Federal and state authorities.
Representatives of the Cabinet for Health Services have met with representatives of the U.S. Attorney's office. The federal authorities have requested that Cabinet personnel not disclosure [sic] any information on what was discussed. Accordingly, your request must be denied pursuant to KRS 61.878(1)(h) on the grounds that premature disclosure of any information would compromise the integrity of any activity of the federal authorities.
By letter dated October 14, 2002, William May, General Counsel, Kentucky Lottery Corporation (KLC), responded to the request, advising that the request was denied pursuant to KRS 61.878(1)(h), and further explained:
To this end, we have been requested by the U.S. Department of Justice, Federal Bureau of Investigation ("Bureau") not to release the subpoena and/or the contents of the request of the subpoena because it could harm the Bureau (and/or Kentucky Attorney General) investigation by prematurely indicating the documents, materials or issues that are being reviewed and scrutinized. We are further requested not to disclose the substance or contents because premature disclosure of the information in the subpoena would be detrimental to the investigation, as it could possibly compromise witnesses or subjects of the investigation. Finally, we have been requested not to disclose any of the above information until further notice by the Bureau.
As a result of the three agencies' denial of Mr. Loftus's request, attorney Jon L. Fleischaker initiated these appeals on behalf of his client, The Courier-Journal , requesting this office review the denials. In his letter of appeal, Mr. Fleischaker states that the agencies asserting KRS 61.878(1)(h) as a basis for nondisclosure of the subpoena are neither law enforcement agencies nor engaged in administrative adjudication and the subpoenas were not compiled by the agencies, but rather served on each by the FBI and, thus, argues that public disclosure of the subpoenas would not harm the state agencies. Additionally, he argues that it cannot be shown that disclosure of the subpoenas would harm the FBI's investigation, particularly in light of the already highly publicized circumstances surrounding the investigation.
After receipt of Notification of the appeal and a copy of the letter of the appeal, each agency provided this office with a response to the issues raised in the appeal. In a joint response submitted by John H. Walker, Assistant General Counsel, Cabinet for Health Services, and Todd Shipp, Assistant General Counsel, Transportation Cabinet, the two Cabinets, by way of background, explained in part:
In the past several weeks, the Governor, the Cabinet for Health Services, and the Transportation Cabinet and the Kentucky Lottery Corporation have been the focus of investigations into allegations made by Tina Conner, the owner of the Birchtree Healthcare Center. The Executive Branch Ethics Commission, the Office of the Attorney General and the United States Attorneys for the Eastern and Western Districts of Kentucky are involved in reviewing the conduct of the Cabinets, the Corporation, and the Governor to determine whether the Governor may have improperly influenced state government decisions relating to Ms. Conner's various enterprises.
The Executive Branch Ethics Commission has issued its subpoenas for agency records. Representatives of the Attorney General and the U.S. Attorneys have met with Cabinet for Health Services officials to discuss the joint investigation. The federal authorities have specifically directed that the Cabinet not reveal anything that was discussed. Disclosure of the content of any information would be detrimental to the joint investigation. A copy of the letter is attached to the appeal. The Transportation Cabinet denied the request, citing 01-ORD-217. The Cabinet for Health Services and the Kentucky Lottery Corporation denied the request as well, citing KRS 61.878(1)(h) on the grounds that premature disclosure of any information would compromise the integrity of an on-going investigation.
In their response, the Cabinets again assert that the federal authorities had specifically requested that the information discussed in meetings or that information sought through subpoenas be kept confidential. In addressing Mr. Fleischaker's arguments, the Cabinets countered:
The appellant argues that none of the administrative agencies are engaged in administrative adjudication, and that therefore, the exemption from open records found at KRS 61.878(1)(h) does not apply. Reliance upon the exemption contained in 1(h) is not based upon the fact that the agencies themselves are involved in an administrative adjudication, but that law enforcement officials are involved in an investigation of serious allegations involving the Governor and state government. To allow the appellant access to a record indirectly which would not be available to it directly negates the statutory exemption. Documents received by the administrative agencies from law enforcement authorities during an investigation, together with any discussions or information obtained by the law enforcement agencies, assume the character of material compiled in the process of detecting or investigating alleged statutory or regulatory violations. Under the specific language of the statute, these records are exempted from disclosure until enforcement action is taken or a decision not to take action is made. See KRS 61.878(1)(h).
. . .
The appellant further suggests that any documents from the joint investigation are open because their release would not harm state agencies. The point made in the responses was that joint investigators have specifically requested these records to remain confidential on the grounds that premature release would be detrimental to the investigation. The exemption in subsection (1)(h) has not been invoked to protect state agencies, but instead to recognize the detrimental impact of premature release upon the pending investigation.
In a separate response, Mary A. Maple, attorney, on behalf of the Kentucky Lottery Corporation, addressed the issues raised in the appeal and Mr. Fleischaker's arguments. In her response, Ms. Maple argued that the requested subpoenas were properly withheld from disclosure under KRS 61.878(1)(h) because they were compiled by the FBI, a law enforcement agency, in the process of investigating statutory or regulatory violations, and that the FBI had requested that neither the subpoena nor its contents be released because it could harm the Bureau (and/or Kentucky Attorney General) investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized, and the agency had been requested not to disclose any of the above information until further notice by the Bureau.
Addressing Mr. Fleischaker's argument that disclosure of the subpoenas would not harm the FBI's investigation due to the highly publicized circumstances, Ms. Maple stated:
Despite the fact that circumstances surrounding the case have already been highly publicized, Mr. Fleischaker's contention that there would be no harm presumes that all of the elements of the FBI's investigation have been subject to public scrutiny. Merely because there is publicity, even substantial publicity, does not automatically mean that all areas of potential inquiry have been subjected to that publicity.
We are asked to determine whether the agencies' denial of the requests for copies of the subpoenas and related correspondence served on the agencies by the FBI violated the Open Records Act. For the reasons that follow, we conclude the public agencies properly denied the request under authority of KRS 61.878(1)(h).
KRS 61.878(1)(h) authorizes the 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.
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. 01-ORD-217; 97-ORD-52; OAG 90-116. The subpoena (s) at issue here were compiled by a federal agency, the FBI, and served on state agencies in pursuing its active ongoing investigation. Because a copy of the subpoena (s) is maintained by each agency, it is a public record subject to the Open Records Act. The question is whether it is open or exempt from disclosure under the cited exemption KRS 61.878(1)(h).
In 01-ORD-217, we held that the Transportation Cabinet had properly relied upon KRS 61.878(1)(h) in denying a request for an FBI Grand Jury subpoena by asserting the FBI had asked the Cabinet to "maintain the subpoena and treat it as confidential and as part of their investigation," and the Cabinet's description of the harm that would result in premature disclosure "would be to alert persons who heretofore had not been notified that they or their actions are being looked into," established, at a minimum, that the disclosure of the subpoena could possibly compromise the investigation by tipping off a possible witness or target.
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. In discussing the premature release of the subpoena, we stated:
Release of the subpoena before the completion of the federal action could harm the federal government's investigation and could harm the agency's ability to cooperate with the federal government in this investigation as well as in prospective investigations. Although allowing inspection of the subpoena would not be as intrusive and harmful as allowing inspection of the documents requested in the subpoena, such inspection still could harm the investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government.
In the instant appeal the agencies have indicated that the FBI, by letter and by affirmative communication, has requested that the agencies not disclose the subpoenas, related correspondence, and information discussed in meetings, as premature disclosure could be detrimental to its ongoing investigation by indicating the documents, materials, or issues being reviewed and revealing particular information involving certain contracts, individuals, documents, entities, and could possibly compromise witnesses or subjects of the investigation.
Under these circumstances, we conclude that, based upon the FBI's request that the subpoenas not be disclosed and the description of the harm that could result from premature disclosure of them and related investigative information, the agencies properly denied the requests under authority of KRS 61.878(1)(h) and 01-ORD-217, 97-ORD-52 and OAG 90-116. Significant to this analysis is that the document in question was not prepared by the agencies in their normal course of business, but were Federal Grand Jury subpoenas compiled by the FBI in pursuing its ongoing investigation. As noted in the joint response of the Cabinets, to allow the requester access to a record indirectly which would not be available directly [from the FBI] negates the statutory exemption set forth in KRS 61.878(1)(h).
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.
Footnotes
Footnotes
1 The Transportation Cabinet's initial response did not cite KRS 61.878(1)(h) as the basis of its denial. It based its denial under authority of 01-ORD-217, a decision based on KRS 61.878(1)(h). However, in the Transportation Cabinet and the Cabinet for Health Services's joint response to the letter of appeal, KRS 61.878(1)(h) is affirmatively cited as the exemption under which Mr. Loftus's request was denied.