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 Administrative Office of the Courts and the University of Louisville violated the Open Records Act in denying Raoul Cunningham's October 19, 2005, request for "any and all supporting data, documents, and other materials utilized by Steven C. Bourassa and Viviana Andreescu for their preliminary and final report entitled Racial Fairness in Sentencing: A Case Study of Selected Crimes in Jefferson County . . .[;] specifically, . . . the names of all circuit and district court judges studied for the report, along with a breakdown of each respective judge's sentences studied for the report by the crime committed and the race of the defendant . . . ." Mr. Cunningham is President of the Louisville Branch of the National Association for the Advancement of Colored People. The Administrative Office of the Courts denied his request on the basis of, inter alia, the courts' "constitutional right of control over their own records" articulated in Ex parte Farley, Ky., 570 S.W.2d 617, 625 (1978). The University of Louisville denied his request on the basis of KRS 61.878(1)(b) and KRS 61.878(1)(k), incorporating the Certificate of Confidentiality issued by the National Institute of Health, United States Department of Health and Human Services, under authority of Section 301(d) of the Public Health Services Act, 42 U.S.C. § 241(d) into the Open Records Act. Based on the overwhelming weight of legal authority, we must affirm AOC's and U of L's denial of Mr. Cunningham's request. While we recognize, and vigorously endorse, the important public policy supporting disclosure of the disputed data, to wit, the public's right to monitor the performance of its elected judiciary through records access, the controlling case law upon which AOC relies, coupled with the governing federal confidentiality provision upon which U of L relies, compel us to reach this conclusion.
In November 2002, AOC, as "administrative arm of the Court of Justice," entered into a memorandum of agreement with the University of Louisville Research Foundation to "procur[e] a research study to benefit the functioning of the Court of Justice." AOC undertook to assist the Commission of Review on Racial Fairness in Jefferson County, Kentucky, established by the Chief Justice of the Supreme Court, by contracting with U of L "to have specific confidential data maintained by AOC analyzed to evaluate racial fairness in sentencing in Jefferson County." Under the terms of the agreement, AOC provided data extracted from Jefferson Circuit Court records to U of L, 1 some coded for purposes of anonymity, for research and analysis. U of L, in turn, agreed to terms of strict confidentiality. 2 U of L Professor of Urban Studies Steven C. Bourassa completed his study in 2003, 3 presenting the Commission on Racial Fairness with his final report in September 2004. In July 2005, the Court of Justice released the study to the public. It is the data underlying Dr. Bourassa's report that is the subject of this open records appeal.
On behalf of his client, the Louisville Branch NAACP and its President, Mr. Cunningham, Jon L. Fleischaker argues on appeal that the Certificate of Confidentiality upon which U of L relies does not shield the requested data from disclosure inasmuch as that data was gleaned from publicly accessible court records. He questions the legal effect of the Certificate of Confidentiality, noting that the nature of the study conducted by Dr. Bourassa does not fall within the parameters of 42 U.S.C. § 241(d), that the subjects of the study do not qualify for protection under that provision, and that the data had been transmitted to U of L, and the study commenced, several months before U of L obtained the Certificate.
Similarly, Mr. Fleischaker challenges AOC's reliance on Ex parte Farley, above, asserting that the holding in that case is limited to "records generated by the courts in the course of their judicial work [which are] inseparable from the judicial function," Farley at 624, or "incident to [the court's] decision-making process." Farley at 626. He distinguishes the Court's deliberative records from records of the courts' administrative operations, likening the contested data to the latter because it is "not part of any court's ongoing judicial work in any particular case." It is his position that the requested data is publicly available in court files and that its sensitivity, if any, derives from the fact that "disclosure may reveal the identities of judges who the University study suggests have imposed racially disparate sentences . . . ." 4
In supplemental correspondence directed to this office following commencement of this appeal, both AOC and U of L amplified on their positions. Through its attorneys, William H. Hollander and Deborah H. Patterson, U of L reaffirmed its reliance on KRS 61.878(1)(k) and the Certificate of Confidentiality issued under authority of 42 U.S.C. § 241(d). U of L also invoked, for the first time, KRS 61.878(1)(b), permitting public agencies to withhold "[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research." Countering the NAACP's position that the Certificate has no legal effect, U of L maintained that the study constitutes "behavioral . . . or other research" within the meaning of 42 U.S.C. § 241(d), that its subjects are not expressly or impliedly excluded from the protection afforded by 42 U.S.C. § 241(d) simply because they are judges/elected officials, and that the timing of the application for, and receipt of, the Certificate does not undermine its legal effect because 42 U.S.C. § 241(d) contains no time limitations, extending coverage "during any time the certificate is in effect." Although some of the data was transmitted to U of L before the Certificate was issued, U of L "maintained the information while the Certificate was in effect and the protection is permanent." In sum, U of L asserted, the Department for Health and Human Services fully understood the nature of the research conducted, determined that 42 U.S.C. § 241(d) was applicable, and issued a Certificate of Confidentiality 5 that has the force of law. 6
AOC, too, amplified on the original bases for denial of the NAACP's request in supplemental correspondence directed to this office. Recounting the factual background giving rise to Ex parte Farley, above, General Counsel D. Scott Furkin explained that the open records issue in that case arose from public advocate Farley's attempt to obtain through the Open Records Act records accumulated by the Court of all post-1970 death penalty cases for the purpose of reviewing the validity of the sentences under KRS 532.075(6). AOC resisted disclosure, asserting that the records were compiled by the Court "for its own use," and the Supreme Court affirmed, holding that "the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Farley at 624. It was AOC's position that:
the records at issue herein . . . fall squarely within Farley's holding. They were generated by, housed at, and compiled by the AOC for the Court's use; they are Court of Justice records that are subject only to the direction and control of the Supreme Court and, as such, are not subject to the Open Records Law. The decision whether to release the records/data, or not is in the hands of the Chief Justice.
(Emphasis in original.) Analogizing the compilation of data in Farley, for the administrative purpose of reviewing death penalty cases, to the compilation of data herein, for the administrative purpose of identifying unfairness in sentencing due to race, Mr. Furkin concluded that Farley is dispositive of the issue on appeal.
Having reviewed the arguments advanced by these parties, we find that Ex parte Farley, above, is, in fact, controlling on the issue of access to responsive data in the custody of AOC. Further, we find that KRS 61.878(1)(k), operating in tandem with 42 U.S.C. § 241(d) and the Certificate of Confidentiality issued thereunder, authorizes nondisclosure of responsive data in the custody of the University of Louisville. Simply stated, this office cannot substitute its judgment for that of the courts in resolving disputes concerning access to court records, or that of a federal authority in interpreting and implementing federal law prohibiting disclosure of records in the custody of a state agency.
Administrative Office of the Courts' denial of the NAACP's request
Echoing the view announced in Ex parte Farley, above, the Attorney General has consistently recognized that the courts and judicial agencies, such as AOC, are not governed by the Open Records Act. In adjudicating a dispute involving access to "information regarding the construction of facilities utilized as justice centers throughout the Commonwealth for the previous five years," the Attorney General recently opined:
Resolution of this appeal turns on the application of KRS 26A.200, KRS 26A.220, and Ex parte Farley, above, to the requested records. As noted, in Farley the Supreme Court held that records generated by the courts are not subject to statutory regulation, including the statutory scheme codified at KRS 61.870 to 61.884 and commonly referred to as the Open Records Law. At page 625 of that decision, the Court held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . some details of the law . . . present interferences that we regard as inconsistent with the orderly conduct of our business, and those we do not accept." Farley at 625. The Attorney General has relied on this language in consistently holding that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the Court's rules and regulations governing access to its own records, and are accepted as a matter of comity. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173; 97-ORD-138; 02-ORD-24.
This position finds support in KRS 26A.200 and KRS 26A.220. KRS 26A.200 provides that all records which are made by or generated for or received by any other court, agency, or officer responsible to the court, are the property of the Court and are subject to the control of the Supreme Court. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the Court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4. Moreover, KRS 26A.220 provides:
In analyzing these provisions, and their interface with the Open Records Act, the Court opined:
Id. at 625 (emphasis added). See also, York v. Commonwealth, Ky. App., 815 S.W.2d 415, 417, 418 (1991) (holding that "the only statute which specifically names courts as public agencies [namely, the Open Records Act] has been held not to apply to court records").
In Ex parte Farley, above, the Supreme Court specifically recognized that the Administrative Office of the Courts is "part and parcel of the judicial department of the state . . . [and] inseparable from the office of the Chief Justice itself." Ex parte Farley at 620. It exists "to serve as the staff for the Chief Justice in executing the policies and programs of the Court of Justice," KRS 27A.050, and to "act as the administrative and fiscal agency of the Court of Justice." SCR 1.050(1). Records generated by and for the Administrative Office of the Courts are indisputably records of the Court. Accord, 02-ORD-24; see also, OAG 79-174 and OAG 85-9 (Board of Bar Examiners is not a public agency for open records purposes); OAG 91-45 (Judicial Retirement and Removal Commission, now the Judicial Conduct Commission, is not a public agency for open records purposes); OAG 91-47 and 93-O RD-47 (Kentucky Bar Association is not a public agency for open records purposes). It is for the Court, and not this office, to determine which policies evinced by the Open Records Law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity.
04-ORD-037, p. 3, 4. Given the marked similarity between the records at issue in Ex parte Farley, above, and the records at issue in this appeal, we find that there is no analytical basis that permits us to depart from firmly established legal precedents. 7
The fact that the records from which the disputed data was extracted are publicly accessible in the Jefferson Circuit Clerk's Office does not alter our conclusion. We concur with AOC in the view that its denial of the NAACP's request "has not made whatever information is in the clerk's office less accessible to the public; it is still there, and remains no less accessible, " "that the data at issue in this appeal was compiled separately and apart from any records retained in the clerk's office specifically for the racial-fairness-in-sentencing study," and that access to the former does not create an entitlement to the latter. Just as the data extracted by AOC in Farley for the purpose of administrative review of death penalty cases was deemed publicly inaccessible in that case, notwithstanding the fact that the death penalty cases themselves were accessible through the courts, here the data extracted by AOC for the purpose of its racial-fairness-in-sentencing study enjoys protection, notwithstanding the fact that the Jefferson Circuit Court cases from which it was extracted enjoy no protection. AOC's position, in this regard, is once again "well taken." OAG 78-262. University of Louisville's denial of the NAACP's request
So, too, is the position taken by the University of Louisville with regard to the application of KRS 61.878(1)(k) and the Certificate of Confidentiality issued by the National Institute of Health, United States Department of Health and Human Services, under the authority of the Public Health Services Act, 42 U.S.C. § 241(d). The referenced exception to the Open Records Act authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal laws or regulations." As noted, this exception operates in tandem with 42 U.S.C. § 241(d), under the terms of which:
The Secretary may authorize persons engaged in biomedical, behavioral, clinical, or other research 8 (including research on mental health, including research on the use and effect of alcohol and other psychoactive drugs) to protect the privacy of individuals who are the subject of such research by withholding from all persons not connected with the conduct of such research the names or other identifying characteristics of such individuals. Persons so authorized to protect the privacy of such individuals may not be compelled in any Federal, Sate or local civil, criminal, administrative, legislative or other proceedings to identify such individuals.
The federal law prohibiting disclosure of public records or information, 42 U.S.C. § 241(d), is implemented through the issuance of certificates of confidentiality, by, inter alia, the NIH, 9 upon application for a particular research project. In August 2003, Dr. Bourassa applied for a Certificate of Confidentiality from NIH for his study of racial disparities in sentencing in Jefferson County 10 based on his concern that:
The results of the study may show that particular judges are making sentencing decisions that display a pattern that could be interpreted to be "racist." If those judges were identified, this could result in substantial harm to their reputations and careers.
The Certificate that was subsequently issued recognized the legitimacy of these concerns, stating that:
A Certificate of Confidentiality is needed because sensitive information about judges' possible biases will be collected during the course of the study. The certificate will help researchers avoid involuntary disclosure that could expose subjects or their families to adverse economic, legal, psychological, and social consequences.
Notwithstanding the NAACP's argument that the Certificate lacks the force of law because of irregularities in the manner in which it was obtained, 11 and, more fundamentally, because 42 U.S.C. § 241(d) is inapplicable to the "research" conducted and its "subjects," the record on appeal is devoid of proof that the Certificate is invalid. It therefore provides absolute protection 12 against compelled disclosure of identifying information about the subjects of the study.
The University of Louisville amply demonstrates that the disputed data consists of "identifying information." In the Q and A portion of the National Institutes of Health Office of Extramural Research Website, that term is defined, inter alia, as "any other item or combination of data about a research participant which could reasonably lead, directly or indirectly by reference to other information, to identification of that research subject." It is by this standard, and not by the standard established in Hardin County Schools v. J. Kyle Foster, Ky., 40 S.W.3d 865 (2001) in construing KRS 61.878(2), that we assess the propriety of U of L's reliance on 42 U.S.C. § 241(d) and its denial of Mr. Cunningham's request.
In response to this office's KRS 61.880(2)(c) request for additional documentation to substantiate its denial, 13 U of L explains:
The data . . . included case numbers and codes for judges. Anyone having access to the data who wanted to identify specific judges could simply review publicly available court documents, by case number, and determine the judge assigned to the case. The data publicly reported as part of the study used different codes for the judges but records in the possession of the researchers, and sought by the NAACP in this action, reveal those codes and would allow someone with knowledge of the initial codes (obtained from reviewing court records) to identify the judges as they are coded in the publicly available report.
In response to a request for a sampling of the data withheld, attached as Exhibit D is a sealed envelope provided only to the Attorney General. 14 It contains a listing of 23 lines of data from one of the data sets used to analyze cocaine possession cases. The first variable is the case number. The code number for the judge assigned to each case is the second variable on page 4 of the list. All of the 23 cases listed here were decided by judge 10. Clearly the identity of judge 10 could be ascertained by reviewing the court records by the assigned case number.
This is sufficient, in our view, to substantiate U of L's denial of the NAACP's request for all supporting data utilized by Dr. Bourassa in his preliminary and final report entitled Racial Fairness in Sentencing: A Case Study of Selected Crimes in Jefferson County. To require involuntary disclosure of the disputed data would be tantamount to breaching the protection afforded by the certificate through release of a combination of data about research subjects that could reasonably lead, directly or indirectly by reference to other information, to the identification of those subjects. We therefore respectfully decline the NAACP's invitation to disregard the Certificate of Confidentiality, and affirm U of L's denial of its open records request. We fully concur with the NAACP in its view that disclosure of the disputed data promotes an informed electorate, and are, once again, hopeful that AOC will consider this fact in determining whether the policies of openness evinced by the Open Records Act should here be accepted as a matter of comity, notwithstanding the fact that such disclosure "may cause inconvenience or embarrassment to public officials or others." 15 It is not, however, for this office to usurp the judicial prerogative, or to otherwise transgress upon federal authority, in this matter.
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.
Jon L. FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
William J. Morison, Ph.D.Open Records Officer & Director, UARCUniversity of LouisvilleEkstrom LibraryLouisville, KY 40292
Raoul Cunningham, PresidentNAACP Louisville BranchP.O. Box 161173Louisville, KY 40256
Angela D. KoshewaGeneral CounselUniversity of LouisvilleRoom 206, Grawemeyer HallLouisville, KY 40292
Deborah H. PattersonWyatt, Tarrant & Combs, LLP500 West Jefferson Street, Suite 2800Louisville, KY 40202-2898
William H. HollanderWyatt, Tarrant & Combs, LLP500 West Jefferson Street, Suite 2800Louisville, KY 40202-2898
Scott FurkinGeneral CounselAdministrative Office of the Courts100 Millcreek ParkFrankfort, KY 40601-9230
Footnotes
Footnotes
1 The data elements provided were identified as follows:
Identification number (or other means to match system data with criminal history data)
Case Number
Case Filing Date
UOR Code
UOR Description
Race of Offender
Ethnic Origin of Offender (Either Hispanic or Non-Hispanic)
Gender of Offender
Bail
Original Charge
Charge Number
Charge Date
Disposition Date
Disposition Type
Trial Type
Original Plea
Commonwealth Offer on a Plea
Final Plea
Charge Memo
Sentence Date
All Available Details About Sentences (including Prison, Jail, and Home Sentences, Suspended Sentences, Probation, Community Service, Concurrent, Consecutive, Life, and Death Sentences, Including the Sentence Memo)
Judge Who Determined the Sentence (coded for anonymity)
Judge's Experience (Years in Office, which shall not be used in any manner that will compromise anonymity)
Whether the Defense Attorney Was Court Appointed
All of the Above Details about any other crimes for which the same offender was convicted as part of the same case
2 Section 5 of the Memorandum of Agreement thus provides:
ULRF agrees not to use or release any information provided to it by the AOC other than is needed for the limited purposes of this Agreement. ULRF agrees its reports and any other information disseminated by it will not disclose statistical information descriptive of any readily identifiable person. Information and statistics concerning Judges and their respective years of service will not be presented in any manner that will compromise their anonymity. AOC has coded the identity of the Judges so as to maintain anonymity, and it is AOC's understanding that ULRF will further encode this data. The identity of the Judges shall remain confidential and anonymous unless such information is requested by the Chief Justice of the Supreme Court of Kentucky.
3 Upon presentation of his initial report in 2003, the Commission asked Dr. Bourassa to conduct additional research to confirm his findings.
4 Mr. Fleischaker also contests AOC's reliance on the self-critical analysis privilege, arguing that the privilege has not been recognized in Kentucky, and cannot in any event, be said to apply to a study of the performance of publicly elected judges. Because we find Ex parte Farley, above, controlling on the issue before us, we do not address the propriety of AOC's invocation of the privilege.
5 "Confidentiality Certificate Numbers AA-65-03 issued to University of Louisville School of Urban and Public Affairs conducting research known as A Study of Racial Disparities in Sentencing in Jefferson County, Kentucky," dated September 9, 2003.
6 U of L advances a highly persuasive argument that KRS 61.878(1)(b) also authorizes nondisclosure of the data, noting the clear terms of confidentiality under which the data was transmitted to U of L and the absence of any statutory requirement that the data be "generally recognized as confidential or proprietary." Compare, KRS 61.878(1)(c)1. and 2. U of L emphasizes the "multiple regression analysis and other appropriate multivariate procedures" utilized by Dr. Bourassa, and "the report itself, which includes nineteen tables and thirty-five references" that support "the scientific nature of the research." Although there are no open records decisions directly on point, we note that in 01-ORD-143 this office recognized that KRS 61.878(1)(b) "would have been available to the University of Kentucky" as a basis for denying The Lexington Herald-Leader's request for records, including intake forms and necropsy reports, compiled by the University regarding late-term or full-term foals examined by the University's Livestock Diagnostic Center. Because we affirm U of L's reliance on KRS 61.878(1)(k), and the Certificate of Confidentiality obtained pursuant to 42 U.S.C. § 241(d), as the basis for denying the NAACP's request, we proceed no further in this analysis.
7 We note that in 04-ORD-037, the Attorney General questioned AOC's reliance on Farley to withhold records reflecting the expenditure of appropriated funds for the construction of justice centers, expressing concern that AOC may have "painted with too broad a brush in applying Ex parte Farley [citation omitted] and Ex parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (982) to support its position." Horn v. Commonwealth of Kentucky, Ky., 916 S.W.2d 173, 176 (1995). We deferred to the Court's authority, "[m]indful of the limits of our role in resolving . . . open records disputes," but suggested that "AOC may wish to consider . . . whether disclosure of records containing the information sought . . . serves 'a legitimate public interest,' and the policies of openness evinced by the Open Records Act should here be accepted as a matter of comity. " 04-ORD-037, p. 6.
8 Defined as "a systematic investigation designed to develop or contribute to generalizable knowledge."
9 Other federal agencies, including the Centers for Disease Control, the National Cancer Institute, the Food and Drug Administration, and the National Institute on Drug Abuse, are also authorized to issue certificates of confidentiality for certain types of research projects.
10 See Note 6, above.
11 The undersigned Assistant Attorney General confirmed in a May 4, 2006, conversation with Valerie Bonham, an attorney in the Office of the NIH Legal Advisor, that none of these alleged irregularities are sufficient to overcome the presumption of validity that accompanied issuance of the Certificate by NIH.
12 The only exceptions to this prohibition ondisclosure are as follows:
. Voluntary disclosure by study participants;
. Voluntary disclosure by researcher on matters such as child abuse, reportable communicable diseases, or possible threat to self or others;
. Voluntary compliance by researcher with reporting requirements of state laws;
. Release by researcher to DHHS as required for program evaluation or audits of research records.