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 (KLC) violated the Open Records Act in denying Cindy Naething's two open records requests for information on certain specified pull tab reports on the basis of KRS 154A.040, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). For the reasons that follow, we affirm the KLC's denial of the requests.
On two separate dates, Ms. Naething submitted open records requests to the KLC asking whether "big winners on pull tabs has hit" (July 15, 2002) and whether "big winner or tickets have been cashed" (February 4, 2003) for certain specified pull tab games.
The KLC denied both requests under authority of KRS 154A.040. In both responses, the agency explained:
Pursuant to KRS 154A.040(1)(c) all records of the KLC are deemed open records and subject to inspection unless "The disclosure of the record could impair or adversely impact the security of the corporation in the operation of the lottery . . ." The information you have requested on specific pull tab games would impair or adversely impact the security of the KLC in the operation of the pull tab game, and will not be released.
After commencement of Ms. Naething's appeal, Mary A. Maple, Goldberg & Simpson, submitted a supplemental response to this office on behalf of KLC. In her response, Ms. Maple explained that Ms. Naething had written numerous letters after her open records requests complaining that she was not being provided the requested information and alleging fraud or other illegal activity by "those Indians down in Franklin, Kentucky." Ms. Maple indicated that KLC had consistently responded to these letters advising her that these letters were not open records requests and the information she was requesting was not open records because it would adversely impact the security and integrity of the Lottery games.
Addressing the open records issues raised in the appeal, Ms. Maple advised, in relevant part:
KRS 61.878(1)[l] 1 provides that "[p]ublic records and information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are excluded from the open records laws. The General Assembly limited the availability of KLC records in KRS 154A.040 and specifically exempted records that would adversely affect the security of KLC or its retailers. The information requested by Ms. Naething would adversely affect the security of KLC.
One published Opinion of the Attorney General, 93-ORD-44, specifically addresses the application of KRS 154A.040. It states, in reference to KRS 154A.040(1)(c),:
Ms. Naething's open records requests were whether certain pull tabs games with particular identifying numbers for the series had paid off yet, that is, whether there had been any "big winners" on these series yet. As noted in Ms. Naething's subsequent letters, she wanted this information to give her an advantage in winning in pull tabs. Giving this information would jeopardize the integrity of the pull tab games and that is why the information was denied.
We are asked to determine whether the KLC's denial of Ms. Naething's request violated the Open Records Act. For the reasons that follow, we conclude that the agency properly relied upon KRS 154A.040(1)(c), in tandem with KRS 61.878(1)(l) , in denying her requests and, thus, did not violate the Act.
KRS 154A.040(1)(c) provides:
(1) All records of the corporation shall be deemed open records and subject to public inspection, unless
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(c) The disclosure of the record would impair or adversely impact the security of the corporation in the operation of the lottery or the security of lottery retailers.
KRS 61.878(1)(l) excludes from the mandatory disclosure provisions of the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 154A.040(1)(c) to prohibit the disclosure of records that contain information that would adversely affect the security and integrity of the lottery games.
The KLC in its denial letters and in its supplemental response argues that to provide Ms. Naething with the records and information she requests on specific pull tab games would impair or adversely impact the security of the operation of the pull tab games. In the supplemental response on behalf of KLC, Ms. Maple explained:
In the majority of pull tab games, there are 560 pull tabs in a packet. There is one big winner in each packet. If Ms. Naething knows that there has already been a big winner in the series, she knows that she will not win if she buys more in that series. She may also tell others not to buy in that series. Additionally, if she knows how many pull tabs have been bought in that series and that there is no winner yet, she knows that if she buys out the rest of the series, she is guaranteed to win. As Ms. Naething notes in her various letters, she does keep track of how many pull tabs in a particular series have been purchased and she admits that she wants this information to give her an advantage in playing pull tabs. This is adversely affecting the integrity of the pull tab games. It would skew the results in her favor.
By analogy, it would be akin to Ms. Naething asking a blackjack dealer in Las Vegas to tell her the cards that have been played in previous hands using the same deck so she can more accurately count the cards to determine her odds in a particular hand. It would be giving her an unfair advantage in the game. This is precisely what the General Assembly sought to prevent in enacting [KRS] 154A.040(1)(c).
We agree with the KLC's position that release of records containing the information she requested would affect the security and integrity of the pull tab games by enabling Ms. Naething to "decode" and obtain unfair advantage in playing those games. As we stated in 93-ORD-44, KRS 154A.040(1)(c) was enacted to ensure that the integrity of the lottery would not be compromised by the disclosure of information bearing on its games. Accordingly, we conclude that the KLC properly relied upon KRS 154A.040(1)(c), in tandem with KRS 61.878(1)(l), in denying Ms. Naething's requests and, thus, its responses did not violate the Open Records Act.
In her letter of appeal, Ms. Naething also alleges that in telephone conversations with KLC employees, she was advised that if she would make an open records request to the agency in writing that she would be provided with the requested pull tab information. In its supplemental response, KLC challenged this assertion and provided the following explanation of procedures it normally follows when it receives an open records request by telephone and, in particular, employee conversations with Ms. Naething about making as open records request to the agency:
Individuals who call and request open records information over the telephone are told to put the request in writing and send it to KLC. This does not mean that the information will be provided. It is merely an instruction as to how to make an open records request. Ms. Naething specifically alleged that Joetta Bowman told her she would be able to get this information. See the attached affidavit of Ms. Bowman which states that she never told Ms. Naething that she would absolutely get the information but that she did tell her she would have to submit her request in writing.
Such a factual dispute is incapable of resolution in an open records appeal based on the review of a limited written record, and we therefore decline to address this issue. See, 98-ORD-148. However, we do note that requiring a requester to submit an open request in writing is consistent with the requirements of the Open Records Act. KRS 61.872(2) .
Finally, in numerous letters to the KLC and in her letter of appeal and subsequent correspondence to this office after initiation of her appeal, Ms. Naething alleges fraud, unfair treatment, and other illegal activities regarding various lottery retailers, the operation of the pull tab games, and the KLC's responses to her complaints on these matters.
The Attorney General's role in adjudicating an open records dispute is a narrow one. This office is not empowered to resolve disputes that involve issues that are beyond the scope of the Act. We cannot address, in the context of an open records appeal, a complaint alleging illegal activities concerning the operation of lottery pull tab games or how the KLC handles its complaints. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the KLC violated the Open Records Act in its handling of Ms. Naething's open records requests, which, as noted above, we concluded it did not.
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.
Cindy NaethingP.O. Box 50250Bowling Green, KY 42102
Joetta Bowman, ParalegalLegal DepartmentKY Lottery Corporation1011 West Main StreetLouisville, KY 40202-2623
William H. MayGeneral Counsel & Corporate SecretaryKY Lottery Corporation1011 West Main StreetLouisville, KY 40202-2623
Mary A. MapleGoldberg & Simpson3000 National City Tower101 South Fifth StreetLouisville, KY 40202-3118
Footnotes
Footnotes
1 The supplemental response incorrectly cites this statute as KRS 61.878(1)(k), however the statutory language quoted clearly indicates that the KLC is relying upon KRS 61.878(1)(l) in its response.