Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Lexington-Fayette Animal Care & Control, LLC violated the Kentucky Open Records Act in denying the request of Lawrence A. Levin for copies of "All documents pertaining to the property located at 3177 Russell Cave Road, Lexington, KY 40511 and its owner, Mrs. Carlton Cole" on the basis of KRS 61.878(1)(h). By initially failing to cite the applicable statutory exception, and provide a brief explanation of how the exception applies to the records, or portions thereof withheld, the Division of Animal Care & Control committed a procedural violation of the Open Records Act. Because the requested records were generated in the process of detecting and investigating statutory or regulatory violations, the subject investigation is ongoing, and the Division would be harmed by the premature release of information to be used in a prospective enforcement action or adjudication, the Division properly relied upon KRS 61.878(1)(h) in denying Mr. Levin's request as to those responsive records generated on or after February 11, 2005. However, the protection afforded by KRS 61.878(1)(h) does not extend to any existing records that are responsive to Mr. Levin's request which were created before that time. Unless the Division can articulate a statutory basis for denying access to those responsive records created independent of and/or prior to the investigation, assuming any such records exist, the Division must honor Mr. Levin's request as to those records.
By letter directed to Chief Nathan Bowling, Division of Animal Care & Control, on August 10, 2005, Mr. Levin requested "access to and copies of" the aforementioned records. More specifically, Mr. Levin's request encompasses "correspondence, internal memoranda, official records, complaints, investigations, inspection reports, status reports, citations, photographs, summaries or descriptions of conversations, minutes of meetings, electronic mail, recordings, and phone messages." As observed by Mr. Levin, the "scope of the requested documents" shall include: "1) all contacts with Mrs. Cole, her veterinarians, employees, attorneys and/or agents; 2) all contacts between the [Division] and other branches of state, county, or local government dealing with this property and/or Mrs. Cole; and 3) all complaints made against this property and/or Mrs. Cole and any documents generated in investigating such complaints." In a timely written response, Chief Bowling advised Mr. Levin that the Division received his request on August 11, 2005, and the information requested "relates to a current and [ongoing] investigation and may not be released at this time."
On August 17, 2005, Mr. Levin initiated this appeal from the denial of his request. As observed by Mr. Levin, Investigator Carolyn Huffman "decided that the horses were in satisfactory condition" in April 2005, and told the caretaker that her services were no longer needed. At this point, the Division "concluded its investigation." Subsequent to the Division "ending its investigation in April 2005, it received new complaints about the condition of the horses. Animal Control then initiated a new investigation." According to Mr. Levin, the Division enlisted the services of "Dr. Tad Tipton of Hagyard-Davidson-McGee Associates, who has stated that multiple horses have died and been hospitalized in the last two months." Despite these "dire events," the Division has "publicly stated that it does not plan to issue any citations," which Mr. Levin cites as further evidence that the Division has concluded this investigation as well.
Correctly observing that Chief Bowling "offered no statutory authority for his denial," Mr. Levin contends that KRS 61.878(1)(h), upon which Chief Bowling presumably relied, does not apply on the facts presented. As to "the identity of informants, " Mr. Levin and his wife "are the main informants and any other sensitive information could be redacted." In addressing the final element of "premature release of information . . .," Mr. Levin emphasizes that the Division has indicated that it has "no plans to issue a citation." Under these circumstances, "the Act clearly dictates the release of information." In further support of this position, Mr. Levin quotes the legislative mandate of strict construction codified at KRS 61.871. In Mr. Levin's view, the Division is taking the position that "it is engaged in a permanent investigation, stretching back in time to cover all concluded investigations, even those which may be prior to 2005, and going forward to cover all recent activity" even though the agency does not plan to issue any citations. Such a position would "render the Open Records Act meaningless." In the event this office affirms the Division's denial as to those records relating to the current investigation, Mr. Levin requests that "all records up to at least April 2005 be released."
Upon receiving notification of Mr. Levin's appeal from this office, Carroll M. Redford III, attorney, responded on behalf of the Division. Citing KRS 61.878(1)(h), Mr. Redford advises us that the investigation "remains pending" as the Division "is presently involved in the process of detecting and investigating claims of statutory or regulatory violations." As observed by Mr. Redford, the subject investigation was initiated on or about February 11, 2005, "and continues through the present day." Premature disclosure "would harm the investigation" by the Division. On August 22, 2005, the Division filed a civil action in Fayette Circuit Court; copies of the complaint and petition for declaratory relief are attached to Mr. Redford's response. Without further elaboration as to the applicability of the exceptions, Mr. Redford cites KRS 61.878(1)(a), (1)(i) and (j), the attorney-client privilege and/or work product doctrine as additional support for the position of the Division.
In addition, Mr. Redford asserts that Mr. Levin has attributed "misstatements or conclusions" to the Division which are "simply not accurate or true." Regardless of whether the investigator made the statement quoted, the Division "had not and has not concluded its investigation and it remains [ongoing] ." On a related note, the Division "did not end its investigation in April 2005; the investigation remains open and active." To clarify, Mrs. Cole hired Dr. Tipton and his firm which, according to published news reports, "terminated their services to Mrs. Cole on or about August 24, 2005." In addressing Mr. Levin's contention that the Division does not plan to issue any citations, Mr. Redford explains that the investigation is "pending and active and all options for enforcement purposes remain open to [the Division] depending on the circumstances and whether sufficient evidence exists as is required" pursuant to the relevant statutes and ordinances. Contrary to Mr. Levin's assertion, "neither he nor his wife are 'main informants' as to the" subject investigation. Although the Levins have filed numerous complaints with the Division recently, the information they have provided "is not of primary use in the investigative process." Finally, Mr. Redford denies that the Division is withholding information to shield itself from criticism as alleged by Mr. Levin. In sum, all information related to the investigation of Good Turn Farm "is exempted from disclosure pending completion of the investigation or the initiation of criminal cruelty charges."
In reply, Mr. Levin contends that the civil action "by its very nature, necessitates public disclosure" of the records requested. Further, Mr. Levin's request "was not limited to the investigation Mr. Redford states began on or about February 11, 2005." To the contrary, the Division has "never had any basis for withholding documents pre-dating February 11, 2005," and Mr. Levin requests that the Attorney General direct the Division to disclose any "earlier documents," regardless of the outcome with respect to the later material.
As a public agency, the Division is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from the Division's initial response is any reference to the applicable statutory exception (s) and the requisite brief explanation of how the exception(s) applies. A public agency such as the Division must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. From a procedural standpoint, the Division violated the Open Records Act in failing to comply with the mandatory terms of this provision. In responding to future requests, the Division should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 2
Turning to the substantive issue presented, the Division's position is supported by governing precedent relative to those responsive records created on or after February 11, 2005. 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) as:
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 Division qualifies as a public agency involved in administrative adjudication as required to trigger application of KRS 61.878(1)(h). Likewise, the records at issue were generated pursuant to the subject investigation or "compiled in the process of detecting and investigation statutory or regulatory violations." Although the Division has not elaborated as to the type of harm that would result from disclosure of the records, 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 on the matter. 05-ORD-162; 04-ORD-041; 02-ORD-208; 97-ORD-107; 93-ORD-117; OAG 91-57; OAG 87-15. On appeal, the Division confirms that the investigation which was initiated on or about February 11, 2005, "remains open and active," and the Division "had not and has not concluded its investigation;" nor is the Division in a position to "prematurely disclose information which is the subject of a pending and active investigation." In addition, the Division expressly indicates that premature disclosure of the information contained in the responsive records would harm the investigation thereby satisfying its burden of proof as to those records which satisfy all three parts of the test codified at KRS 61.878(1)(h). With respect to those responsive records in the custody of the Division which do not fall within the parameters of KRS 61.878(1)(h), if any, the Division must either provide Mr. Levin with copies or articulate a statutory basis for denying access in order to be in compliance with the Open Records Act.
Because this appeal presents no reason to depart from the approach historically taken by this office in decisions interpreting KRS 61.878(1)(h), the same outcome necessarily follows. "Where administrative action had not yet been completed, the agency could well find it would be harmed by premature release of information to be used in administrative adjudication. " OAG 89-80, p. 2. Having satisfied the requisite criteria, the Division properly relied upon KRS 61.878(1)(h) in denying Mr. Levin's request as to the specified records.
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 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 Although the Division complies with KRS 61.880(1) on appeal, the Division must bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its 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. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.