Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police, responding through the Office of the Governor, 1 properly relied on KRS 61.878(1)(m)1.c., d., and e. in denying Associated Press reporter Mark Chellgren's March 28, 2005, request for records documenting:
. The number of sworn Kentucky State Police personnel assigned for security and related duties on Monday, March 28, 2005, for the landing and departure of Vice President Dick Cheney at Louisville International Airport[;]
. The salaries, overtime, and related expenses associated with the Cheney visit.
For the reasons that follow, we decide the agencies' reliance on KRS 61.878 (1) (m) 1. c. and d., the exceptions to disclosure for antiterrorism protective measures and plans, and for security and response needs assessments, to deny Mr. Chellgren's request for the number of personnel assigned to protect the Vice President of the United States was correct. With respect to the request for salaries, overtime, and expenses, we affirm the agencies' denial of the request on the basis of the nonexistence of the records at the time the request was made and decline to render a decision on the access issue that only ripened after Mr. Chellgren's appeal was filed. Finally, we do not think the exception for counterterrorism measures and plans is applicable.
By letter dated April 1, 2005, John Roach, General Counsel for the Office of the Governor, denied Mr. Chellgren's request for records disclosing the number of troopers assigned to the detail:
based upon the language of KRS 61.878[(1)(m)1.c., d., and e. 2 . . . [because] releasing the total number of troopers creates a "reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and . . . [a]ntiterrorism protective measures and plans; [c]ounterterrorism measures and plans; [and] [s]ecurity and response needs assessments."
It was the agencies' position that "release of staffing information may expose vulnerabilities in . . . plans and assessments [regarding protective measures, counterterrorism efforts, and security responses]." In response to Mr. Chellgren's request for records documenting "salaries, overtime, and related expenses," Mr. Roach advised that no responsive records currently existed but such records might be available the following week. Nevertheless, he noted, "it is likely that even if a document were to exist in the future related request, it would be exempt from disclosure under KRS 61.878[(1)(m)1.c., d., and e.]." He directed Mr. Chellgren "to affirmatively request this update next week."
On appeal, Mr. Chellgren challenges the agencies' reliance on KRS 61.878(1)(m)1.c., d., and e. questioning whether "disclosure of the number of KSP personnel assigned for security and related duties on March 28, which . . . is in the past, really create a 'reasonable likelihood' of a threat to public safety? " In his view, this is an "especially critical [issue] as Kentuckians seek to balance their implicit right to know how their government spends their money with the more recent rush among some to proclaim barely definable 'security' considerations . . . carte blanche to keep government activities secret."
In supplemental correspondence directed to this office following commencement of Mr. Chellgren's appeal, Mr. Roach elaborated on the agencies' position:
The record containing information responsive to Mr. Chellgren's request includes not only numbers, but the names, titles, post assignments, and hours of the special security detail. This is precisely the type of record for which the General Assembly amended the Kentucky Open Records Act in House Bill 59. See 2005 Acts Chapter 93. To the extent other targets of terrorism will visit Kentucky in the future, disclosure of the records, including the number of Kentucky State Police personnel assigned to the detail, constitutes a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing and protecting against a terrorist act, because the record exposes staffing patterns and numbers of personnel assigned specifically to the special detail. KRS 61.878[(1)(m)1.]. To the extent the record also includes names of individual troopers, their post assignments, and hours dedicated to the detail, a person could use the record to anticipate where and which Kentucky state troopers will be called from their posts to participate in a special detail to protect a high ranking official. Certainly an individual who is planning to launch an attack against a high ranking governmental official would be greatly assisted by knowing how many state troopers were utilized in protecting the Vice President of the United States.
Mr. Roach attached the affidavit of Keith Alan Hall, Executive Director of the Kentucky Office of Homeland Security, in which Mr. Hall expressed the view that:
the information requested by Mr. Chellgren could be reasonably likely to lead to the disruption of public safety and/or hinder the Commonwealth's ability to deter, detect, mitigate or respond to a terrorist act in that the specific records asked for may lead to conclusions regarding law enforcement's assessment of potential vulnerability and risks associated with the Vice-President's visit.
KRS 61.878(1)(m)1. excepts from disclosure to the public:
Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terroristic act and limited to:
a. Criticality lists resulting from consequence assessments;
b. Vulnerability assessments;
c. Antiterrorism protective measures and plans;
d. Counterterrorism measures and plans;
e. Security and response needs assessments;
f. Infrastructure records that expose a vulnerability referred to in this subparagraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems;
g. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security stems of any building or facility owned, occupied, leased, or maintained by a public agency; and
h. Records when their disclosure will expose a vulnerability referred to in this subparagraph and that describe the exact physical location of hazardous chemical, radiological, or biological materials.
The Governor's Office and KSP maintain that Mr. Chellgren's request implicates documents relating to antiterrorism protective measures and plans within the meaning of KRS 61.878(1)(m)1.c.; counterterrorism measures and plans within the meaning of KRS 61.878(1)(m)1.d.; and security and response needs assessments within the meaning of KRS 61.878(1)(m)1.e., and that their disclosure "would have a reasonable likelihood of threatening public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act [.]" We agree that the records meet the exceptions under KRS 61.878 (1) (m) 1. c. and e.
"Terrorist act" means, among other things: "a criminal act intended to [i]ntimidate or coerce a public agency or all or part of the civilian population." KRS 61.878 (1) (m) 2. a. Cause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency. " civilian population;
Mr. Hall's affidavit established that disclosure of records documenting the number of officers assigned to protect the Vice President and discharge related duties has a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, or responding to a criminal act intended to either intimidate or coerce a public agency or all or part of the civilian population and falls within the category of records identified at KRS 61.878(1)(m)1.c. and e.
We are of the opinion that a security detail for a high official of the United States Government is an antiterrorism protective measure and part of a plan aimed at protecting the official by preventing or deterring an attack on the person of the official. It is also our opinion that the assassination of a high official of the United States Government meets the definition of terrorist act in that it is a crime intended to intimidate the government and civilian population. These types of crimes are the stock in trade of terrorist organizations.
Any information regarding a security detail we think would be the type of information that a terrorist organization would want to know in planning, financing, and carrying out an assassination attempt of one holding a high office of the United States. The number of personnel assigned to security would also give an idea of the security needs assessment of the agencies involved. Accordingly, the number of personnel assigned for security for the landing and departure of the Vice President of the United States is exempt from public disclosure under KRS 61.878(1) (m) 1. c. and e.
As for the other exception relied upon by the agencies we are not willing to say, based on the information before us, that a security detail constitutes a counterterrorism measure, or part of a counterterrorism plan, because a counter connotes to us offensive operations not mentioned in Mr. Hall's affidavit. Accordingly, we decide that the exception contained in KRS 61.878 (1) (m) 1. d. does not apply to this situation.
We concur with the agencies in their view that KSP had no obligation to honor Mr. Chellgren's request for records documenting "salaries, overtime and related expenses associated with the Cheney visit" at the time the request was made insofar as no responsive records existed at that time. See, e.g., 99-ORD-30, citing OAG 90-26 for the proposition that "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." Nor do we find error in its demand that Mr. Chellgren resubmit his request, after responsive records were generated, if he wished to pursue this matter. As Mr. Roach correctly notes, a standing request for public records that have not yet been created need not be honored. See, e.g., 97-ORD-18 for the proposition that no right of inspection attaches for records that have not yet come into existence and to the extent that a request is prospective, there is no obligation to honor it.
Since Mr. Chellgren initiated this appeal, he has resubmitted his request for "salaries, overtime, and related expenses claimed by the Kentucky State Police sworned personnel who were assigned for security and related duties" during Vice President Cheney's March 28, 2005, visit, and the Governor's Office has denied the request "[f]or the same reasons stated in . . . [the] letter dated 4/01/2005 to [Mr. Chellgren] and for the reasons set forth in . . . [the] response to the Attorney General . . . ." Although the Governor's Office strongly intimated in its original response to Mr. Chellgren's request, and its supplemental response to Mr. Chellgren's appeal, that access to such records, when they came into existence, would be denied on the basis of KRS 61.878(1)(m)1.c., d., and e., that issue did not become ripe for review until after his appeal was filed. For this reason, we respectfully decline to review the issue except to note, as we have so often noted, that "[a]mounts paid from public coffers are perhaps uniquely of public concern...[and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc." OAG 90-30, p.3; see also, OAG 76-648, p. 2 (holding that "[a]s far as open records are concerned, it is...the policy of the Legislature that wherever public funds go, public interest follows").
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. ChellgrenAssociated PressThe Capitol, Room 243Frankfort, KY 40601-3490
Debborah ArnoldCustodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
John RoachGeneral CounselOffice of the Governor700 Capitol Avenue, Suite 100Frankfort, KY 40601
Footnotes
Footnotes
1 On appeal, Mr. Chellgren questions the propriety of the Governor's Office issuing a denial of an open records request submitted to KSP. The Governor's Office responds that "interagency coordination is necessary and appropriate to determine which records should be withheld under the new provisions of KRS 61.878[(1)(m)] relating to homeland security." Although KRS 61.880(1) contemplates an agency response "issued by the official custodian or under his authority," and the term "official custodian" is defined at KRS 61.870(5) as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control[,]" we are not prepared to hold that the current practice employed by the Governor's Office violates the Open Records Act as long as the practice does not result in delays in agency response. See, 93-ORD-134 (City of Louisville's policy of processing open records request through its Law Department did not violate the Act, but might be problematic if it occasioned delays in responding) . We do, however, question the existence of legal authority supporting this practice.
2 The Legislative Research Commission confirms that the exemption created by HB 59 of the 2005 Regular Session is codified as KRS 61.878(1)(m).