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 Office of the Attorney General's Consumer Protection Division violated the Open Records Act in the disposition of Charles D. Walter's January 30, 2006, request for copies of "any and all material contained in [the Division's] files, including investigation matters and/or materials submitted by the complaining witness, Duncan T. Smith." 1 For the reasons that follow, and with the exceptions noted, we affirm the Division's disposition of Mr. Walter's request.
By letter dated February 15, 2006, Executive Director Todd E. Leatherman released documents totaling some ninety-five pages to Mr. Walters, but explained to him:
Certain information has been redacted from the documents. Specifically the complainant's home address and phone number and other personal information have been redacted. These redactions are based on KRS 61.878(1)(a) as this information constitutes information of a personal nature where disclosure thereof would be an invasion of personal privacy. 2
In addition, documents including the initial complaint and supporting documentation provided to this agency regarding potential evidence have been withheld at this time based upon KRS 61.878(1)(h), in that premature disclosure of these documents would likely harm this agency's ability to complete its investigation and potentially bring law enforcement or administrative action.
In supplemental correspondence directed to Mr. Walter, Litigation Manager Maryellen B. Mynear reaffirmed Mr. Leatherman's position, and amplified thereon, by explaining that "documents containing information regarding potential witnesses or other sources of evidence were withheld. "
Shortly thereafter, Mr. Walter initiated this appeal on behalf of his client, DirecTech, objecting to the Division's reliance on KRS 61.878(1)(h), and expressing the belief that "these documents may contain information helpful to the defense of [his] client." In responsive correspondence directed to this office, Mr. Leatherman opined that the Division properly relied on KRS 61.878(1)(h):
as the documents in question were obtained in the process of investigating alleged regulatory violation (i.e., the filing of a consumer complaint alleging that DirecTech has violated the Kentucky's Business Opportunity Act, KRS 367.801 et seq. ), the matter is under investigation, and premature disclosure of certain of these documents will reveal information that would harm the agency's ability to complete its investigation. While Mr. Walter asserts that the documents may be helpful in defense of his client, he cannot point to any provision of the Open Records Act that vitiates or trumps application of KRS 61.878(1)(h) in this situation.
Anticipating objection to the timeliness of the Division's original response to Mr. Walter's request, Mr. Leatherman concluded his supplemental response by noting that the request did not reach the Division until February 8, 2006, and that soon after this date Ms. Mynear phoned Mr. Walter to advise him "that due to the volume of responsive documents necessitating redaction, the documents were delayed in being copied and would be mailed as soon as possible." 3
It is the decision of this office that the Consumer Protection Division properly relied on KRS 61.878(1)(a), in redacting personal information from the records released to Mr. Walter, and on KRS 61.878(1)(h) in withholding records compiled in the course of its investigation in their entirety insofar as that investigation is ongoing and disclosure of the records at this juncture may compromise prospective enforcement action. Before proceeding to the ultimate issue on appeal, we briefly address the apparent conflict that our review of the Division's actions presents. KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. In construing this provision, this office has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court--which could have been done without requesting the opinion--that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, this office must proceed with a review of the appeal "without favoritism or bias." Id. We have successfully done so on numerous occasions in which our impartiality was called into question, including those occasions on which we were asked to conduct a KRS 61.880(2) or KRS 61.846(2) review of disputes involving this office and in which we found violations of the Open Records and Open Meetings Acts. See, e.g., 97-ORD-117 (Office of the Attorney General improperly relied on KRS 61.878(1)(a) in denying request for records relating to investigation); 99-ORD-121 (Office of the Attorney General violated KRS 61.880(1) in its denial of request for records of its Consumer Protection Division); 01-OMD-154 (Kentucky Child Support Guidelines Commission, which Attorney General was contractually obligated to legally advise, violated Open Meetings Act in failing to comply with requirements for special meetings); accord, 99-ORD-36; 05-ORD-075 (Attorney General adjudicates disputes involving Department of Public Advocacy). Here, as in past appeals, we assure the parties that "[w]e strive to maintain absolute [independence and] impartiality in discharging [the statutory] duty" with which we are charged by KRS 61.880(2). 97-ORD-117, p. 1.
Turning to the substantive issues in this appeal, we find no error other than the error noted in footnote 2, above, in the Division's reliance on KRS 61.878(1)(a) to withhold personal identifiers such as home address and telephone number. 4 KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In weighing the competing open records related public interest in monitoring government action against the privacy interest implicated by disclosure of personal information appearing in public records, the Kentucky Court of Appeals has declared that the "citizens' right to be informed as to what their government is doing . . . is not fostered . . . by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct . . . [and t]he relevant public interest supporting disclosure in this instance is nominal at best."
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994). Here, as in Zink, we find that disclosure of the personal identifiers the Division withheld "would do little to further the citizens' right to know what [the Division] is doing and would not in any real way subject [Division] action to public scrutiny." Id. Having determined that there is a strongly substantiated privacy interest in the personal information withheld, we conclude that that interest outweighs any nominal public interest in disclosure and affirm the Division's redactions under authority of KRS 61.878(1)(a).
With reference to the partial withholding of records compiled by the Consumer Protection Division in the process of investigating allegations that DirecTech has violated KRS 367.801, et seq., we affirm the Division's reliance on KRS 61.878(1)(h). That exception authorizes nondisclosure of:
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 order to successfully raise this exception, 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. In construing KRS 61.878(1)(h), the Attorney General has observed:
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 have been met.
See, for example, 95-ORD-95, p. 3; 96-ORD-155, p. 5; 97-ORD-129, p. 3.
Clearly, the Consumer Protection Division of the Attorney General's Office is a law enforcement agency in the prosecution of violations of KRS 367.801. 5 Thus, it satisfies the first part of the three part test. 6 Moreover, the Division establishes that the disputed records were compiled in the process of investigating statutory violations and therefore satisfies the second part of the test. 7 "This language," the Attorney General has observed, "has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident and incidents involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action." 97-ORD-129, p. 4. Finally, the Division justifies its denial of Mr. Walter's records request with proof of harm by premature disclosure of the records. The Division asserts that release of the records could jeopardize its investigation insofar as the records "contain[] information regarding potential witnesses or other sources of evidence . . . ." Having articulated the basis for denial in terms of the requirements of KRS 61.878(1)(h), we affirm the Division's denial of Mr. Walter's request for open investigative files. Accord, 97-ORD-52 (Public Corruption Unit of Attorney General's Office properly denied open records request for records compiled in active investigation on the grounds that premature disclosure would divulge information on the outcome of the case); 00-ORD-81 (Medicaid Fraud and Abuse Control Division of Attorney General's Office properly relied on KRS 61.878(1)(h) in denying request for records relating to investigation of alleged improprieties in the Cabinet for Health Services' Office of Inspector General and Division of Licensing and Regulation).
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.
Charles D. WalterBoehl Stopher & Graves LLP410 West BroadwayPaducah, KY 42001
Elizabeth Ungar NatterAssistant Attorney GeneralConsumer Protection DivisionOffice of the Attorney General1024 Capital Center Drive, Suite 200Frankfort, KY 40601-8204
Todd E. LeathermanExecutive DirectorConsumer Protection DivisionOffice of the Attorney General1024 Capital Center Drive, Suite 200Frankfort, KY 40601-8204
Footnotes
Footnotes
1 Although dated January 30, 2006, Mr. Walter's request did not reach the Division until February 8, 2006, as evidenced by the metadata appearing on page one of the fax.
2 We note that the Division incorrectly paraphrases KRS 61.878(1)(a). The express language of that exception requires a showing of a " clearly unwarranted invasion of personal privacy" as opposed to a lesser "invasion of personal privacy. " This is a significant semantic distinction, importing a legislative resolve that the public's interest in disclosure of public records must only yield if the privacy interests implicated are of sufficient weight to overcome the "general rule of inspection and its underlying policy of openness for the public good," Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), and prompting the Kentucky Supreme Court to declare that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational and can only be determined within a specific context." Id. at 328.
3 We note that KRS 61.872(5) imposes a duty on public agencies to communicate such information in writing and to state the earliest date certain on whether the records will be available. That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
We urge the Division to bear these observations in mind in responding to future open records requests.
4 It is incumbent on the Division to be specific as to the type of personal information withheld. Kentucky's courts, as well as this office, have recognized that "information such as marital status, number of dependents, wage rate, social security, home address and telephone numbers are generally accepted by society as details in which an individual has at least some expectation of privacy." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994). Assuming the additional information withheld falls within one of these categories, we find no error in the division's decision to withhold it. Nevertheless, we urge the Division to identify with greater specificity the types of personal identifiers withheld under the privacy exception.
5 See KRS 367.990(14).
6 Compare University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992) (records compiled by University in the course of an NCAA investigation did not qualify for exclusion as records of a law enforcement agency or agency involved in an administrative adjudication since University could not be characterized as either). See also, 95-ORD-95 (Transportation Cabinet is neither a law enforcement agency nor an agency involved in an administrative adjudication within the scope and meaning of KRS 61.878(1)(h)).
7 Compare 95-ORD-95 (records of Transportation Cabinet created in the normal course of business which were subpoenaed for use in a grand jury investigation could not properly be characterized as records "compiled in the process of detecting and investigating statutory or regulatory violations); 97-ORD-129 (Drug Task Force's policy and procedure manual did not satisfy second part of three part test); 99-ORD-162 (maintenance records for a radar unit used in detecting speeding violations are not records compiled in the course of detecting and investigating statutory violations).