Request By:
Mark R. Chellgren
Associated Press
The Capitol, Room 243
Frankfort, KY 40601-3490
Mary Ann ScottCustodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601Emily Dennis, Staff Attorney
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, 2nd Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in partially denying Associated Press reporter Mark R. Chellgren's October 11, 2005, request to inspect:
Invoices, charge slips, and any and all other documentation of fuel purchases [from December 9, 2004, to the present] for vehicles used to transport Gov. Ernie Fletcher, including, but not limited to, the Lincoln Town Car, Suburban and other vehicles owned by the Kentucky State Police or any other entity of state government.
For the reasons that follow, we find that KSP's reliance on KRS 61.878(1)(h), KRS 61.878(1)(m) 1.c., and KRS 61.878(1)(l), 1 incorporating KRS 16.060 into the Open Records Act, to support nondisclosure of the names of the members of the Governor's Executive Security Detail appearing on fuel receipts was misplaced. 2
By letter dated October 14, 2005, KSP Records Custodian Mary Ann Scott notified Mr. Chellgren that he could inspect monthly automotive log sheets and fuel receipts for the Suburban after the names and social security numbers of the state troopers to whom the Suburban "is or has been assigned" were redacted. 3 Ms. Scott explained:
The name of the trooper to whom the Suburban is assigned is subject to redaction pursuant to KRS 61.878(1)(h), KRS 61.878(1)(l) and KRS 16.060, 4 since the identity of individual troopers currently assigned to the Executive Security Detail constitutes a record of a law enforcement agency compiled in the process of detecting and investigating statutory violations, the disclosure of the information would harm the agency by premature release of information to be used in a prospective law enforcement action. Disclosure of the individual troopers currently assigned to the Executive Security Detail would further abrogate the duties of the Kentucky State Police to prevent crime, maintain law and order, and to collect, classify, and maintain information useful to the detection of crime.
In addition, Ms. Scott maintained:
Protection of the Governor by the Kentucky State Police is an "antiterrorism measure." Revealing the names of state troopers currently assigned to the Governor's vehicle for protection purposes is reasonably likely to threaten the public safety by exposing a vulnerability in preventing a terrorist act against the Governor and is therefore further exempt from disclosure under KRS 61.88(1)(m)1.c.[sic]. There have been occasions in the past where individuals upset with a past-Governor's legislative initiatives attempted to personally confront the Governor in transit from one location to another, requiring intervention by Kentucky State Police officers serving on executive detail. To the extent there will always be differences in public opinion with the Governor's legislative initiatives, it is reasonably likely to believe that in time a confrontation will likely happen again.
Dissatisfied with KSP's partial denial of his request, Mr. Chellgren initiated this appeal on October 14, 2005, questioning KSP's invocation of KRS 61.878(1)(h), KRS 16.060, and KRS 61.878(1)(m)1.c., and expressing grave concern about KSP's attempt to equate "'individuals upset with a past governor's legislative initiatives' with someone planning a terrorist attack." Acknowledging the importance of the enactment of the homeland security exception to the Act, Mr. Chellgren concluded his letter of appeal with a quotation attributed to the bill's sponsor, Representative Mike Weaver, who, when questioned about its recent applications, declared them to be "in violation of the spirit and intent of what we did."
In supplemental correspondence directed to this office following commencement of Mr. Chellgren's appeal, Justice and Public Safety Cabinet counsel elaborated on KSP's position. Responding to Mr. Chellgren's allegation that KSP's position will prevent public scrutiny of records that may reveal fraudulent or criminal activity by KSP or even the Governor, 5 counsel countered that "[n]othing about the invocation of this exceptions prevents a full review of the records independent of the Open Records Act for fraudulent or criminal activity by the Office of the Attorney General and Auditor of Public Accounts." 6 Characterizing the statement attributed to Representative Weaver as "hearsay," 7 counsel noted that pursuant to KRS 61.878(1)(m)5. 8 and KRS 61.878(5), 9 Representative Weaver may review the records without redactions. 10
With reference to KSP's reliance on KRS 61.878(1)(h), counsel urged the Attorney General to "reject a wooden interpretation of KRS 61.878(1)(h) that would make the specifics of preventative law enforcement measures subject to public scrutiny." Continuing, she observed:
The Kentucky State Police is a de facto law enforcement agency within the meaning of KRS 61.878(1)(h). Protection of the Governor is a preventative law enforcement measure which by its very nature is part of the process of detecting statutory or regulatory violations. Crime prevention is also, by its very nature, a "prospective law enforcement action" . The disclosure the names of specific Executive Security officers to whom the Governor's Suburban is assigned would harm the Kentucky State Policy by hindering the KSP's ability to fulfill its statutory obligations set forth in KRS 16.060 to prevent crime, maintain law and order through the state, and to collect, classify and maintain information useful for the detection of crime.
Analogizing the task of protecting public figures with the task of setting up a roadblock to apprehend suspected criminals, counsel noted that in the latter scenario KSP would not be required "to inform the public in advance where the roadblock will be located or how many or which offices will be manning the roadblock. " Under this line of reasoning, she argued, KSP "should be permitted to exempt from public disclosure the identities of the Executive Security Detail officers assigned to the Governor's vehicle under KRS 61.878(1)(h)" as long as "the prospect exists that the Governor may be subjected to harm . . . ." Such a "legitimate state interest," counsel concluded "outweighs the public's right to know specifics about the Detail . . . ."
Amplifying on KSP's argument that "revealing the names of state troopers currently assigned to the Governor's vehicle for protection purposes . . . is reasonably likely to threaten the public safety by exposing a vulnerability in preventing a terrorist act against the Governor, " and premising her argument on the likelihood of future confrontations between the Governor and those constituents who disagree with his policies or opinions, Cabinet counsel asserted:
The assignment of specific KSP troopers to an Executive Security Detail constitutes an "antiterrorism protective measure" within the meaning of KRS 61.878(1)(m)1.c. KRS 61.878(1)(m)2. defines "terrorist act" as a criminal act intended to "intimidate or coerce a public agency" KRS 61.878(1)(m)2.a. Disclosure of the identities of particular officers assigned to the Governor's vehicle creates a vulnerability in preventing or protecting against a terrorist act because, at present, these security officers are not readily identifiable. It makes no sense from a dignitary protection or crime prevention standpoint that the KSP would be required to reveal the identities of the individuals providing protection when the officers are not otherwise identifiable as Executive Security officers.
In support, she attached the affidavit of Lt. Jerry Provence, Commander of the Executive Security Detail, in which he averred that the "[r]elease of any information from which the number of officers assigned to the detail can be inferred would inhibit [his] ability as Commander to effectively plan or coordinate security details because the effectiveness of such a detail is premised upon the concept of provision of maximum perceived security with utilization of limited resources."
Cabinet counsel later supplemented KSP's position with the affidavit of Major Alecia Edgington, Executive Director of the Kentucky Office of Homeland Security, in which Major Edgington recounted an incident involving a confrontation with an angry constituent that occurred while she was detailed to provide security to former Governor Patton. She stated:
After we explained to the constituent that his behavior would not be tolerated, he left the scene. Although the Governor was not injured in the incident, this serves as an example of the situations that can occur while serving as Executive Security to the Governor. At the time of the incident, neither [the other detailed trooper] nor myself were readily identifiable as Kentucky State Police officers assigned to Executive Security Detail nor was our assignment to Executive Security public knowledge. If the numbers of troopers assigned to the Executive Security Detail became public knowledge, it could enable angry constituents who disagree with the Governor or Lt. Governor's initiatives to plan confrontations where Executive Security officers would be outnumbered by the constituents.
On this basis, Major Edgington opined that "disclosure of the identities or exact number of Kentucky State Police personnel assigned to Executive Security Detail creates a foreseeable danger to public safety . . . [by] reveal[ing] specific law enforcement efforts aimed at preventing a terrorist act, such as an attempt to intimidate or coerce the Kentucky State Police to gain access to or harm the Governor. " This is not the standard by which we assess the propriety of a public agency's reliance on KRS 61.878(1)(m)1.c. We therefore find KSP's reliance on the exemption misplaced, and its redaction of the names of the Executive Security Detail troopers to whom the Suburban used for transporting the Governor was assigned, and who signed for fuel purchases, a violation of the Open Records Act.
To begin, we summarily dispense with KSP's reliance on KRS 61.878(1)(h) by referring the parties to 02-ORD-211, an open records decision issued by this office to the Kentucky State Police on November 8, 2002. 11 In that decision, the Attorney General rejected KSP's claim that "the names of the members of [then] Gov. Paul Patton's security detail" were excluded from public inspection by operation of KRS 61.878(1)(h). A copy of that unappealed decision is attached hereto and incorporated by reference, and specifically the discussion at pages 4 through 6. Because the decision was not appealed to circuit court, it "has the force and effect of law" and is binding on KSP. KRS 61.880(5)(b). 12 Although KSP is a law enforcement agency, and therefore satisfies the first part of the three part test found in KRS 61.878(1)(h), "it cannot be persuasively argued that . . . records identifying officers currently assigned to the Executive Security Detail are records 'compiled in the process of detecting and investigating statutory or regulatory violations.'" 13 Here, as in 02-ORD-211, KSP fails to satisfy the second part of the three part test found in KRS 61.878(1)(h), and we find that the disputed portions of the fuel receipts do not qualify for exclusion under that provision. Our interpretation of the exception is consistent with the statutory mandate set forth at KRS 61.871, requiring that "the exceptions provided for by KRS 61.878 . . . be strictly construed," and not, as KSP suggests, a "wooden" interpretation.
In 02-ORD-211, this office also rejected KSP's reliance on KRS 61.872(6), as construed in 95-ORD-121, to support its argument that the public's interest in security "would be significantly compromised if the KSP had to disclose the identities of present Executive Security officers because of the security risk to the officers and the persons they protect." Id. at 6. KRS 61.872(6) authorizes public agencies to withhold public records if "the application places an unreasonable burden" on the agency, and was construed in 95-ORD-121 to authorize nondisclosure of security measures documented in a jail policy and procedures manual "if release . . . would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of [the manual], or information contained therein." At page 9 of 02-ORD-211, we rejected KSP's argument, concluding that "disclosure of the names of officers currently assigned to the Executive Security Detail would [not] place those officers at any greater or lesser risk of potential harm than that to which they are already exposed," or otherwise compromise the Governor's safety. Id. at 9, 10.
02-ORD-211 was issued after the events of September 11, 2001, but before the enactment of KRS 61.878(1)(m)1. and 2. upon which KSP now relies in support of its partial denial of Mr. Chellgren's request. That exception authorizes public agencies to withhold:
1. 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 terrorist act and limited to:
2. As used in this paragraph, "terrorist act" means a criminal act intended to:
Our analysis of the propriety of KSP's reliance on this exception focuses on certain fallacies in the arguments advanced by that agency relative to this statute.
First and foremost, Mr. Chellgren did not request records reflecting "antiterrorism protective measures and plans," but instead requested fuel receipt records for the KSP vehicle used to transport the Governor. In some instances, these records contain the names/signatures of troopers assigned to the Governor's Executive Security Detail. The records do not , however disclose the number of troopers who have accompanied or will accompany the Governor on any particular trip, or in any particular setting, either past, present, or future; nor do the records provide details of specific law enforcement efforts aimed at protecting the Governor, such as the route the Detail has taken or will take, the Detail's departure and arrival times, where members of the Detail will be positioned in relation to the Governor, or the weapons with which the Detail will be equipped. Assuming, arguendo , that disclosure of the total number of troopers assigned to the Detail has a reasonable likelihood of threatening the public safety, a position that was expressly rejected in 02-ORD-211, the unappealed decision referenced above, KSP does not assert that the name of every member of the Executive Security Detail appears on a fuel receipt. We therefore reject the proposition that "the number of officers assigned to the detail" can somehow be inferred from the partial information contained in the receipts. For the same reasons, we find unpersuasive the argument that disclosure of the unredacted receipts will undermine "the concept of provision of maximum perceived security with utilization of limited resources" given the incomplete information the receipts contain.
Moreover, we fail to see how disclosure of the names of the officers on the requested fuel receipts enables the public to identify any one of them as an Executive Security Detail officer. Mr. Chellgren has not requested photographs corresponding to the names appearing on the fuel receipts, or any other description by which the officers can be identified. Simply put, a name is not an anti-terrorism measure unless combined with substantially more information such as that described above, to wit, departure and arrival time, route to be taken, total number of officers assigned, where they will be positioned, and weapons with which they will be equipped. KSP's analogy to the roadblock scenario is therefore flawed. Mr. Chellgren has not requested records documenting where or how many Executive Security officers will be assigned to protect the Governor at a particular event, or any other details of a specific law enforcement effort.
Finally, we find nothing in the definitions found at KRS 61.878(1)(m)2. to support the proposition that a confrontation with an irate constituent, or even "potentially threatening communications," can be equated with a "terrorist act. " 14 Although KSP vaguely references the assassination of Governor William Goebel in 1900, the agency's argument primarily focuses on "differences in public opinion with the Governor's legislative initiatives, " the reasonable likelihood "that in time a confrontation will likely happen again," and averting confrontations with "angry constituents who disagree with the Governor or Lt. Governor's initiatives . . . ." Such confrontations do not rise to the level of a criminal act intended to intimidate or coerce a public agency or all or part of the civilian population per KRS 61.878(1)(m)2.a., disrupt a critical system as described in KRS 61.878(1)(m)1.g. per KRS 61.878(1)(m)2.b., or cause massive destruction to a public building or facility per KRS 61.878(1)(m)2.c. As an elected official, the Governor will inevitably be exposed to conflicting opinions, sometimes vociferously expressed, and as police officers, the troopers, whether assigned to the Executive Security Detail or not, will inevitably be exposed to threatened or actual violence. In our view, however, the disclosure of the officers' names on fuel receipts does not have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act, as described above. KRS 61.878(1)(m)1. Nor can the names be characterized as "antiterrorism protective measures and plans" unless combined with substantially more information. KRS 61.878(1)(m)1.c. Finally, a confrontation with an irate constituent or a threatening communication cannot be equated with a terrorist act, the linchpin upon which the language of the exemption turns. KRS 61.878(1)(m)2.
The restrictive language found at KRS 61.878(1)(m)1.a. through h. and KRS 61.878(1)(m)2. requires that disclosure of the disputed records would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act as defined at, and only as defined at, KRS 61.878(1)(m)2 . The inclusion of these distinct and separate requirements imports a legislative resolve that the provision be invoked judiciously and only when all requirements have been met. Consistent with "[g]eneral principles of statutory construction hold[ing] that a court must not be guided by a single sentence of statute but must look to the provisions of the whole statute and its objects and policy,"
County of Harlan v. Appalachian Regional Healthcare, Inc., Ky. 85 S.W.3d 607, 611 (2002), the statement of legislative intent found at KRS 61.871 declaring that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," and the assignment of the burden of proof to public agencies found at KRS 61.880(2)(c), we conclude that KSP violated the Open Records Act in denying that portion of Mr. Chellgren's request for fuel receipts that contains the names of Executive Security Detail officers.
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 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 KSP referred Mr. Chellgren to the Office of the Governor for responsive records relating to fuel purchases for the Lincoln Town Car, and to the Transportation Cabinet for responsive records relating to fuel purchases for a Chevrolet Tahoe which the Cabinet recently purchased. Mr. Chellgren does not dispute this portion of KSP's response.
3 Mr. Chellgren does not dispute KSP's reliance on KRS 61.878(1)(a) to support redaction of the troopers' social security numbers.
4 KRS 16.060 is not a confidentiality provision and has absolutely no bearing on the resolution of this appeal. We will therefore expend no additional effort addressing this argument.
5 By way of example, Mr. Chellgren notes that the credit cards of troopers assigned to Governor Patton's security detail were used to pay for the former governor's hotel room to conceal his extramarital liaison.
6 While we obviously appreciate the value of an independent review conducted by either of these agencies, we are disinclined to so casually dismiss the public's right of access.
7 We concur with Mr. Chellgren in his view that the rules of evidence governing exclusion of hearsay do not apply in an appeal to the Attorney General. Nevertheless, we have confirmed with Representative Weaver that he did, in fact, make this statement, and have attached newspaper clippings supporting the statement and furnished to the Attorney General by Representative Weaver's office.
8 KRS 61.878(1)(m)5. provides:
The exemption established in this paragraph shall not apply when a member of the Kentucky General Assembly seeks to inspect a public record identified in this paragraph under the Open Records Law.
9 KRS 61.878(5) provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
10 Again, we find that this argument "misses the mark." At issue in this appeal is not the right of the Attorney General or Auditor to conduct an independent review under separate legislative enactment, or the right of a legislator to conduct a review under a narrow exception to the new homeland security exception to the Open Records Act, but the public's right to know.
11 02-ORD-211 was appealed to the Franklin Circuit Court on December 9, 2002, Kentucky Department of State Police v. Jack Brammer , No. 02-CI-01613, but that appeal was voluntarily dismissed by the appellant on December 10, 2002.
12 KRS 61.880(5)(b) provides:
If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
13 We find no support in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), cited by KSP in support of its position. That opinion involved an actual, ongoing enforcement action and a death row inmate's demand for all records in the Commonwealth's Attorney's possession relating to his prosecution. Although the Kentucky Supreme Court recognized that KRS 61.878(1)(h) "should be construed in a manner sufficiently broad to protect a legitimate state interest" and that "the state's interest in prosecuting the appellant is not terminated until his sentence has been carried out," Skaggs at 390, the Court did not intimate, in any fashion, that KRS 61.878(1)(h)" should be construed in a manner sufficiently broad" to extend to speculative crimes or conjectural offenses and records remotely related thereto, if related at all.
14 Lieutenant Provence's affidavit notes that "a recent assessment conducted by the Kentucky Community Preparedness Program concluded that the risk of a terrorist attack on the Governor's Mansion was high." Surely, he does not mean to suggest that such an attack can be thwarted if fuel receipts disclosing the names of officers assigned to the Executive Security Detail are withheld. In any event, KRS 61.878(1)(m)1.g. and KRS 61.878(1)(m)2.c. expressly protect records that "expose a vulnerability . . . [in] any building or facility owned, occupied, leased, or maintained by a public agency [.]