Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Environmental and Public Protection Cabinet, Office of Charitable Gaming, violated the Kentucky Open Records Act in denying the request of Peter O. Samples for copies of "letters, e-mails, memos, field notes, interviews, photos, tape recordings, and any other information compiled as a result of an investigation or inquiry by the Office of Charitable Gaming and/or Alcoholic Beverage Control concerning a Mr. Danny Rains, Williamsburg, [Ky.], relative to his alleged possession and/or operation of illegal slot machines or other similar forms of illegal gaming devices also known as video lottery terminals (VLTs)." As in 05-ORD-152, this office finds that the OCG has not adduced clear and convincing evidence that honoring Mr. Samples' request would place an unreasonable burden on the OCG or that Mr. Samples' request is intended to disrupt other essential functions of the OCG as required to meet its burden of proof relative to KRS 61.872(6). Accordingly, the OCG violated the Open Records Act in denying Mr. Samples' request on this basis. Because the requested records were compiled in the process of detecting and investigating statutory or regulatory violations, the subject investigation is ongoing, and the OCG would be harmed by the premature release of information to be used in a prospective adjudication, the OCG properly relied, in the alternative, upon KRS 61.878(1)(h) in denying Mr. Samples' request.
By letter directed to Stephen B. Humphress, OCG General Counsel, on May 24, 2005, Mr. Samples requested copies of the specified investigatory records "as part of a criminal investigation by the [Office of the Pendleton County Attorney] concerning the operation of video lottery terminals in Pendleton County, Kentucky." Citing KRS 61.872(6), Mr. Humphress denied Mr. Samples' request since an agency has the "right to refuse Open Records Requests if the agency has reason to believe that the requests are intended to disrupt essential functions of the public agency. " In support of this position, Mr. Humphress further advised Mr. Samples as follows:
Pursuant to a Master Settlement Agreement which you signed on February 22, 2005, you agreed, "to never again engage in or be involved with, directly or indirectly, any charitable gaming activities so long as this agreement remains in effect." See, paragraph 7. Since you are prohibited from being involved in charitable gaming activities, your request serves no legitimate purpose, and therefore must be deemed to be intended solely to harass this Office. Your malicious intent toward the Office is made clear by your letter dated today, April 26, 2005, to the Falmouth Outlook.
Pursuant to KRS 61.878(5), and in his capacity as a "County Detective" employed by the Office of the Pendleton County Attorney, Mr. Samples initiated this appeal. According to Mr. Samples, the information requested "concerns an ongoing criminal investigation of this Office of illegal gambling activity in Pendleton County in which it appears that a subject involved may have been the same subject of a prior investigation by the [OCG] and/or the [ABC]." While the phrase "indirectly or directly involved in charitable gaming" is not defined, the Agreement was signed by Mr. Samples and others with the "spirit and intent that [he] would not serve in any capacity with a charitable organization licensed to conduct charitable gaming through which position [he] would indirectly or directly be involved in the management, supervision and/or operation of any gaming activity permitted under a charitable gaming license."
Upon receiving notification of Mr. Samples' appeal from this office, John L. Forgy, General Counsel, Department of Public Protection, responded on behalf of the OCG. To begin, Mr. Forgy incorporates by reference the response of the OCG to Mr. Samples' prior appeal against the OCG, Log Number 200500298 (05-ORD-152). By way of background, Mr. Forgy advises this office that the OCG has "initiated numerous actions against [Mr. Samples] in the past, due to [Mr. Samples'] repeated failures to comply with the charitable gaming laws." Mr. Samples and the OCG entered into a Master Settlement Agreement on February 22, 2005, a copy of which is attached to the OCG's response, that "resolved more than twelve pending cases against [Mr. Samples'] charities. " A review of the agreement reveals "that the basis of these cases was that Samples made judicial admissions in a bankruptcy affidavit that he knowingly violated the charitable gaming laws." In the OCG's view, Mr. Samples is violating Paragraph 7 of the Agreement by "requesting charitable gaming records in an effort to harass the [OCG]." 1 Again citing KRS 61.872(6), the OCG requests that the Attorney General "compel [Mr. Samples] to abide by the agreement by issuing" a decision affirming the OCG's denial of Mr. Samples' request.
In the alternative, the OCG observes that the requested records are "part of an investigation which is still ongoing. " More specifically, "the primary record involved is a single internal memorandum composed by an enforcement officer to report on the status of the investigation." According to Mr. Forgy, the OCG "has yet to take any final action with regard to the investigation, and has not yet generated any records which would provide notice of final agency action. " Citing KRS 61.878(1)(h), the OCG therefore argues that the records are exempt because disclosure would harm the OCG by "premature release of information to be used in a prospective law enforcement action or administrative action. " As an additional basis for denial, the OCG relies upon KRS 61.878(1)(i) as "no final action has yet been taken." 2
In a reply directed to this office by certified mail on July 19, 2005, Mr. Samples again denies that his request is intended to harass or disrupt other essential functions of the OCG. By way of clarification, Mr. Samples further observes that the OCG "failed to point out that the twelve or more violations were mere allegations covering four different charities over more than a two year period. All allegations had been denied and appealed by the charities. " In addition, the cases "were never presented to a hearing officer" nor were there any findings of fact. According to Mr. Samples, the OCG "exercised abuse of discretion and power and misapplied a [Kentucky Revised Statute]" in its zeal to "rid itself of this appellant in the charitable gaming industry." All of this "was in retaliation against the appellant for expressing his critical opinion of the [OCG] over the past eight years, challenging that Office when appropriate and exposing representatives of the [OCG] for possible unethical and criminal activities."
Turning to the matter at hand, Mr. Samples emphasizes that charitable gaming devices and activities are governed by KRS Chapter 238 whereas those at issue are governed by Chapter 528. Because the Agreement addresses charitable gaming activities rather than "general gambling statutes" covered by Chapter 528, his request "cannot be a violation of the terms" of the Agreement. Reiterating that he made the request in "his official capacity as an employee and representative (County Detective) with the Office of Pendleton County Attorney," Mr. Samples contends that the records may be shared pursuant to the Act. Although Mr. Samples concedes that the OCG "may withhold records if an investigation is still open and the release would be detrimental to its own investigation," Mr. Samples requests that the denial by the OCG based upon the terms of the Agreement be dismissed. Given that the investigation "is now over three years old" and a single internal memo is apparently the only responsive record, Mr. Samples argues that the OCG "should be eager to share that information with another investigative agency" since its own investigation appears to be "stale."
To begin, the contentious nature of the relationship between Mr. Samples and the OCG has no bearing on the outcome of this appeal. As consistently recognized by this office:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.
93-ORD-15, p. 6; 05-ORD-99; 00-ORD-073; 96-ORD-223. That being said, the question becomes whether the OCG violated the Open Records Act in denying Mr. Samples' request on the basis of KRS 61.872(6).
At issue in 05-ORD-152 was whether the OCG properly relied upon this provision in denying Mr. Samples' separate but related request for copies of "all temporary licenses" issued by the OCG to all charitable organizations whose renewal applications were denied, "all denial letters issued by the OCG to all charitable organizations that have appealed the denials of their renewal applications," and "all appeal notices submitted by charitable organizations to OCG" for the preceding 36 months. In our view, the analysis contained at pages 4-7 of that decision, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Although Mr. Samples has admittedly been a critic of the OCG, the record is again devoid of any evidence beyond a bare allegation that honoring his request would place an unreasonable burden on the OCG or that his request was intended to disrupt other essential functions of the OCG. As this office has often noted, a bare allegation is not sufficient to satisfy the agency's burden of proof relative to KRS 61.872(6); the OCG therefore erred in denying Mr. Samples' request on this basis. Absent clear and convincing evidence to the contrary, this office must conclude that Mr. Samples submitted his request in good faith. In light of this determination, the remaining question is whether the OCG is authorized to withhold the records pursuant to KRS 61.878(1)(h).
Among those records excluded from application of the Open Records Act absent a court order authorizing inspection are those identified at KRS 61.878(1)(h):
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 this provision, the Attorney General has consistently observed:
In order to successfully raise KRS 61.878(1)(h), 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.
01-ORD-59, p. 8, citing 95-ORD-95, pp. 2-3; 01-ORD-217; 00-ORD-196; 99-ORD-162; 97-ORD-93. Thus, "the need for [the] degree of specificity contemplated by the legislature in KRS 61.880(1) and the Kentucky Court of Appeals in Edmondson v. Alig, [Ky. App., 926 S.W.2d 856 (1996)] is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. " 00-ORD-196, p. 3.
When confronted with the question of whether the Kentucky Labor Cabinet properly denied the request of a Liberty Mutual Claims Adjuster pursuant to this provision, then codified as KRS 61.878(1)(f), while the file was still "under submission," the Attorney General concluded:
The Cabinet invoked such exception until its administrative or adjudicative process was completed. Such basis is a proper one while enforcement action is still under consideration and final action has not been taken, as indicated by the Cabinet's explanation. Accordingly, the Cabinet acted consistent with KRS 61.870 to 61.884 .
OAG 89-80, p. 3; See also 99-ORD-195, adopting OAG 89-80 and OAG 87-29. Such is the case here.
As evidenced by the record, the OCG qualifies as an agency involved in administrative adjudication as required to trigger application of KRS 61.878(1)(h). Likewise, the records, or record, as the case may be, were clearly generated pursuant to the subject investigation or "compiled in the process of detecting and investigating statutory or regulatory violations." Accordingly, the only element in question is the requisite harm. Although the OCG has not elaborated upon the assertion that harm to the OCG would result from disclosure of the requested record(s), numerous decisions of this office support the position that a public agency is not required to disclose records of the type requested until the investigation is closed and final action has been taken. 04-ORD-041; 02-ORD-208; 97-ORD-107; 93-ORD-117; OAG 91-57; OAG 87-15. On appeal, the OCG confirms that the investigation is "still ongoing, " and the OCG has "yet to take any final action" in the matter; nor has the OCG generated any records providing "notice of final agency action. " In addition, the OCG specifies that disclosure of the records would cause harm by prematurely releasing information "to be used in a prospective law enforcement action or administrative action" thereby satisfying its burden of proof, albeit minimally.
Because this appeal presents no reason to depart from prior decisions by the Attorney General interpreting KRS 61.878(1)(h), this office finds that the OCG properly denied Mr. Samples' request on this basis. 3 In so holding, this office reminds the OCG that denials of requests to inspect investigative records must be justified with specificity 4 and KRS 61.878(1)(h) should not be invoked for the purpose of delaying or impeding the exercise of rights granted by KRS 61.870 to 61.884. See 05-ORD-058.
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.
Peter O. SamplesPendleton County DetectiveOffice of the Pendleton County AttorneyDetective Bureau235 Main StreetFalmouth, KY 41040
Stephen B. HumphressGeneral CounselEnvironmental and Public Protection CabinetOffice of Legal ServicesCharitable Gaming and Alcoholic Beverage Control Legal Division132 Brighton Park BoulevardFrankfort, KY 40601
John L. ForgyGeneral CounselDepartment of Public Protection100 Airport Road, Suite 300Frankfort, KY 40601
Footnotes
Footnotes
1 In 05-ORD-152, the Attorney General conclusively resolved the issue of whether Mr. Samples' motive in requesting access to the specified records is relevant against the OCG. Id., pp. 3-4. As before, this office finds that neither KRS 61.872(2) nor any other provision of the Open Records Act "'authorizes public agencies to inquire into a requester's motive in seeking access to public records, or to consider those motives in determining whether the records should be released.'" Id., p. 4, citing 01-ORD-8, p. 5.
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2 In the future, the OCG should bear in mind that a response pursuant to 40 KAR 1:030 Section should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original response denying access. Id; 96-ORD-193.
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3 Given our resolution of this issue, analysis of the remaining argument raised by the OCG is unnecessary. However, this office concurs with the OCG in the view that investigative records may properly be withheld pursuant to KRS 61.878(1)(i) (and 61.878(1)(j)) until final action is taken relative to the subject of the investigation. University of Kentucky v. The Courier-Journal and Louisville Times Co., Ky. App., 830 S.W.2d 373 (1992); Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). See also 05-ORD-048; 02-ORD-208.
4 Specific information as to why the investigation is still open, or the type of harm that would result from disclosure of the records is particularly appropriate on the facts presented given the contentious relationship between the parties.
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