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 Justice Cabinet properly relied on KRS 61.878(1)(h) in denying Associated Press reporter Mark R. Chellgren's October 28, 2002, request to inspect "records compiled from an audit, investigation, compilation or other examination of the computer hard drive, web browser and other materials on the personal computer (PC) assigned to Ralph E. Kelly, former commissioner of juvenile justice." For the reasons that follow, we find that the Cabinet failed to satisfy its statutory burden of proof relative to invocation of the cited exception and sustaining its denial of Mr. Chellgren's request.
By letter dated October 31, 2002, Justice Cabinet Deputy Secretary and General Counsel Barbara W. Jones denied Mr. Chellgren's request. She explained that because Mr. Kelly had filed an appeal with the Kentucky Personnel Board, the case was now in the administrative process and his request was denied pursuant to KRS 61.878(1)(h) . Ms. Jones characterized the requested record as "records of . . . 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 . . . administrative adjudication. " She did not elaborate.
Shortly thereafter, Mr. Chellgren initiated this appeal arguing that KRS 61.878(1)(h) has no application to the records withheld. He maintained that the Cabinet failed to demonstrate that the disputed record(s) were compiled in the process of detecting and investigating statutory violations (inasmuch as they were generated after Mr. Kelly resigned), and that premature disclosure of the record(s) would harm the Cabinet (inasmuch as they identify no informants and Mr. Kelly "must know what was on the computer that was assigned to him"). Further, Mr. Chellgren observed, "the section invoked by Ms. Jones emphasizes that it 'shall not be used . . . to delay or impede' the right of access granted by Ch. 61," and this, in his view, was the net effect of the Cabinet's denial of his request.
Upon receipt of Mr. Chellgren's appeal, the Attorney General requested, pursuant to KRS 61.880(2)(c), that the Cabinet provide us with copies of all records that are responsive to the October 28 request. Several days later, we requested, pursuant to KRS 61.880(2)(c), that the Cabinet furnish us with additional information to substantiate its position. Specifically, we asked that the Cabinet describe, in general terms, what statutory or regulatory violation it is investigating, and, since Mr. Kelly has resigned from his position, to what end. Additionally, we asked that the Cabinet describe, in general terms, how it would be harmed by premature release of the record provided to us in response to our earlier KRS 61.880(2)(c). Finally, we asked that the Cabinet provide us with a copy of the document by which Mr. Kelly initiated his appeal to the Personnel Board and a copy of the Justice Cabinet's response to his appeal.
Although we cannot disclose its contents, the record that the Cabinet identified as responsive to Mr. Chellgren's request is a multipage document captioned "Computer Investigation Report." It was issued by the Governor's Office for Technology on October 10, 2002. In response to the series of questions we raised, the Cabinet advised:
In general terms, Mr. Kelly appears to be challenging his own resignation, and the Justice Cabinet has hired Anita Britton from Stoll, Keenon, and Park to represent us in the matter. We believe that releasing any private information, documents, or files pertaining to this adjudication would negatively impact upon the Justice Cabinet's ability to strategize in the case, upon its confidentiality interests in attorney-client privilege and work-product doctrine and upon its ability to later decide ultimately whether continued litigation or a settlement would best represent the Commonwealth's interest in this matter.
It is the opinion of this office that because the Justice Cabinet failed to meet its statutory burden of proof 1 with respect to two of the three criteria in KRS 61.878(1)(h), we cannot affirm its denial of Mr. Chellgren's request.
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 to public inspection, must be "strictly construed" to afford the broadest possible access. KRS 61.871. 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 KRS 61.878(1)(h), the Attorney General has repeatedly observed:
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 has been met.
95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
Implementing this legislative mandate, in University of Kentucky v. Courier Journal & Louisville Times Co., Ky., 830 s.w.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department in disclosing videotape of incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that Oldham County Animal Shelter compiled records relating to care of rescued animal in the process of detecting and investigating statutory or regulatory violation or that disclosure of the records would harm the agency). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
Although the Justice Cabinet is, in this context, an agency involved in administrative adjudication, namely Mr. Kelly's appeal to the Personnel Board of his resignation, it has not demonstrated that the Computer Investigation Report prepared by GOT at its request is a record "compiled in the process of investigating statutory or regulatory violations" notwithstanding the fact that it was afforded three opportunities to do so. 2 By letter dated November 27, 2002, we asked that the Justice Cabinet "describe, in general terms, what statutory or regulatory violation the Cabinet is investigating . . . ." The Cabinet did not address this question in its response. No statutory or regulatory violation has been cited into which an investigation was or is being conducted and the record on appeal is therefore devoid of proof that the report was "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process." OAG 89-11, p. 4.
By the same token, the Cabinet was afforded three opportunities to satisfy its statutory burden of proving that disclosure of the report 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 or administrative adjudication. " The Cabinet did respond to our KRS 61.880(2)(c) inquiry concerning harm to the agency, advising this office that premature disclosure of the report "would negatively impact upon the Justice Cabinet's ability to strategize in the case, upon its confidentiality interests in attorney-client privilege and work-product doctrine, and upon its ability to later decide ultimately whether continued litigation or a settlement would best represent the Commonwealth's interest in this matter." 3 Respectfully, we find that the Cabinet did not meet its burden of proof in establishing harm.
In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1)(h) in denying a newspaper reporter's request for tapes of radio transmissions between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. We focused not on the fact that these transmissions went out over public airwaves, but on the fact that "there must . . . be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action" . . . [, and] only a bare claim is made in such regard." OAG 89-11, p. 4. There, the county police explained:
The tape in question provides valuable information of an investigative and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect. Release of the tape at this time, in the opinion of the department, would be detrimental to the criminal action against the suspect.
The Attorney General concluded that this statement did "not describe any harm to the agency" if inspection were allowed. OAG 89-11, p. 5.
More to the point, in 98-ORD-31 this office determined that the Lexington-Fayette Urban County Government improperly relied on KRS 61.878(1)(h) in denying an attorney's request for a 911 tape on which a private conversation between emergency services employees was recorded. LFUCG anticipated that the tape would be used in an employee appeal to the Civil Service Commission, and its contents formed the basis of the disciplinary action from which the appeal arose. LFUCG argued that "premature release of this tape could be extremely detrimental to the prosecution of the . . . disciplinary actions." Rejecting this argument, we concluded:
This bare claim appears to be based on little more than supposition and conjecture. As in OAG 89-11, there is no description of the harm that will occur if inspection is allowed. Simply stated, we are unable to discern how prosecution of these disciplinary actions will be impeded, undermined, or otherwise jeopardized by disclosure of the tape.
On this basis, the Attorney General held that, having failed to make the requisite showing of harm, LFUCG improperly withheld the requested record.
As in the decisions cited above, resolution of this appeal turns on the Justice Cabinet's failure to make an adequate showing that it would be harmed by premature release of the tape. The Cabinet asserts that its ability to raise a defense to Mr. Kelly's personnel action, including possible settlement negotiations, will be negatively impacted by disclosure of the report. Again, there is no description of the harm that will occur if inspection is allowed. 4 This is particularly true in light of the fact that, as Mr. Chellgren observes, Mr. Kelly is fully aware of what use he made of his computer and therefore what the report contains. Indeed, as a former public agency employee who has initiated action against an agency, as opposed to having an action initiated against him, Mr. Kelly is entitled to an unredacted copy of the report pursuant to KRS 61.878(3) as construed in 97-ORD-87 and 00-ORD-159 coupled with 95-ORD-97 (copies enclosed). Given these observations, it is especially difficult to discern how the Cabinet's defense to, or settlement of, Mr. Kelly's personnel action will be compromised. Because the report was not "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process," and because the professed harm that would flow from premature disclosure consists of little more than a bare claim, we find that the Justice Cabinet failed to meet its statutory burden of proof in sustaining its denial of Mr. Chellgren's request on the basis of KRS 61.878(1)(h). Having failed to advance any other argument in support of its denial of Mr. Chellgren's request, the Cabinet must disclose the report.
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 R. ChellgrenThe Associated PressState Capitol, Room 243Frankfort, KY 40601
Barbara W. Jones, General CounselKentucky Justice CabinetBush Building, Second Floor403 Wapping StreetFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides that "the burden of proof in sustaining the action shall rest with the agency."
2 The Cabinet's first opportunity to do so occurred when it responded to Mr. Chellgren's open records request, its second opportunity to do so occurred when it received notification of Mr. Chellgren's appeal and was advised that "pursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal," and its third opportunity to do so occurred when this office posed specific written questions to it under authority of KRS 61.880(2)(c).
3 KRS 61.878(1)(h) is not a "litigation" or "residual" exception that can be invoked by an agency solely because it is engaged in an administrative adjudication. Thus, it does not extend protection to records arguably protected by the attorney-client privilege or work-product doctrine. Nor can these privileges be invoked absent a showing that each of the elements of KRE 503 or CR 26.02 are present. The Cabinet makes no such showing relative to the disputed report.
4 Compare 97-ORD-52, holding that public agency made the requisite showing of harm relative to invocation of KRS 61.878(1)(h) when it stated that "premature release of records" relating to seized evidence in the custody of the Cabinet for Public Protection and Regulation "would compromise ongoing investigation and prospective action by divulging information to subjects yet to be interviewed."