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 Department for Natural Resources violated the Open Records Act in denying Associated Press correspondent Samira Jafari's June 5, 2006, request for access to, and copies of:
Transcripts of all the interviews conducted by officials from the Office of Mine Safety and Licensing under the Kentucky Environmental and Public Protection Cabinet of witnesses regarding the May 20, 2006, explosion at Kentucky Darby Mine No. 1 in Harlan County . . . held between May 31 - June 2, 2006, at the Kentucky Community and Technical College campus in Harlan, Ky.
For the reasons that follow, we affirm the Department's denial of Ms. Jafari's request.
In a response dated June 7, 2006, Linda Potter, Executive Assistant to the Commissioner, notified Ms. Jafari that the requested transcripts "are exempted from disclosure under [KRS 61.878(1)(h)]." She explained:
The transcripts . . . requested are not yet completed. In addition, the Office of Mine Safety and Licensing is still in the process of investigating the accident at the Kentucky Darby Mine. Because the interviews are an integral part of our investigation, the transcripts will not be available for release by the Office of Mine Safety and Licensing until the conclusion of the investigation.
Shortly thereafter, Ms. Jafari initiated this appeal questioning how release of the transcripts could harm the Department by revealing the identity of informants when the Department "has already disclosed who the informants were by publicly stating that Kentucky investigators subpoenaed and interviewed all of the employees of Kentucky Darby Mine No. 1," and noting that "[s]tate and federal investigators in West Virginia released transcripts of the witnesses connected to the January 2006 Sago disaster in April 2006 -- as their investigation into the tragedy continued." 1
Unable to resolve the issue on appeal on the facts before us, on June 14, 2006, this office propounded a series of questions to the Department for Natural Resources pursuant to KRS 61.880(2)(c). 2 The salient portions of our questions, and the Department's responses, follow:
Please describe the particular harm to the agency that would result from the premature disclosure of the requested transcripts.
The department is charged with determining the cause(s) of any coal mining fatality and making a report and recommendation to the Governor, Mine Safety Review Commission, Mining Board and Legislative Research Commission for measures that might prevent a recurrence of the conditions that caused the death(s). KRS 351.070(14). It is imperative that that report and recommendations be based upon sound evidence. The premature disclosure of the transcripts would harm the investigation through its adverse impact on the witness interview process, as it would any investigation into any matter. Interviews of witnesses need to be spontaneous and free of the influence of knowing what others have said. The knowledge of others' testimony can result in the "tailoring" of responses and the loss of independent recollection, which is vital to the investigative process. There are serious enforcement and sanction efforts tied to these investigations, as well as recommendations for future safety procedures. If these are to be appropriate, meaningful and accurate, the integrity of the evidence gathering process must be preserved to the greatest extent possible.
Please describe the investigation process undertaken by the Office of Mine Safety and Licensing and the end result of that investigation process. Please indicate where this investigation process fits in the broader enforcement scheme, the nature of possible enforcement action, the types of penalties that can be imposed, and what agency is authorized to impose them. What is the precise role of the Office of Mine Safety in this process and to what use will the requested transcripts be put?
The Office of Mine Safety and Licensing (OMSL) is the agency charged with enforcing the mine safety laws of the Commonwealth of Kentucky, as set out in Chapters 351 and 352 of the Kentucky Revised Statutes. OMSL issues licenses for the conduct of coal mining operations and hires inspectors to perform inspections of these licensed premises for the purpose of ascertaining compliance with the aforementioned mine safety laws. Under KRS 352.180, licensees are required to report accidents in their mines and the statute further provides, in pertinent part:
. . .
When an accident is reported, as the subject one, that report most often goes to the mine's current assigned inspector or the head of the district in which the mine is located. All mine inspectors and rescue team members are on call twenty four hours a day to respond to such problems. Once a call is received, the person receiving the call executes the agency's protocol on who is to be alerted: the district's mine rescue team, the district chief (if he didn't receive the initial call), the agency's executive director, the accident investigators, and so forth. All personnel convene on the scene and begin an assessment of the situation for a determination of what occurred and what can be done. It should be noted that the United States Mine Safety and Health Administration (MSHA) is also notified by the licensee and their personnel will follow approximately the same protocol. It is at this point that MSHA and OMSL begin to work cooperatively on the accident investigation.
MSHA's investigative authorizations call for it to work cooperatively with states on investigations. There is a specific procedure in which joint interviews of witnesses occurs, pursuant to Section 103(a) of the Federal Mine Safety and Health Act of 1977. MSHA's procedures allow for the state to conduct its own investigations and will coordinate its activities with those of the state. MSHA can make its own investigation if it determines that there is a conflict of purpose between it and the state.
. . .
Once all site examinations and interviews are completed, OMSL has sixty (60) days in which to issue a final report to the parties noted in KRS 351.070(14) and the public. The transcripts of the requested interviews and all other information obtained by the accident investigation team, will be utilized in making a determination as to what caused the accident, whether violations occurred and who caused them, and what steps can be taken in the future to prevent such accidents.
. . .
If the accident investigation leads to the conclusion or finds that violations of mine safety laws occurred, OMSL will issue Notices of Non-Compliance to the licensee. A person or persons will be listed as the one "responsible" for the violation. These violations will be referred from the accident investigation team and district office to the OMSL executive director, who will then request the assistance of the Office of Legal Services, Natural Resources Legal Division in pursuing sanctions [per 805 KAR Chapter 8] against the appropriate parties before the Mine Safety Review Commission (MSRC), pursuant to KRS 351.025 and 351.1041.
. . .
MSHA's report can also make findings of violations and undertake enforcement actions against the cited parties. Further, if MSHA finds that there is a reason to believe that a criminal violation of its laws has occurred, it can begin a special investigation in that regard and bring charges in the appropriate United States District Court.
As of June 21, 2006, the date on which the Department responded to our questions, the Department anticipated that its interview process would be completed within ten days, but was uncertain when MSHA would conclude its interviews. Having reviewed the Department's thorough and well-reasoned responses to our questions, we conclude that it properly relied on KRS 61.878(1)(h) in denying Ms. Jafari's request.
Consistent with the principle that "free and open examination of public records is in the public interest," KRS 61.878(1)(h), like each of the eleven other exceptions to public inspection, must be "strictly construed" to afford the broadest possible access. KRS 61.871. KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
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 KRS 61.878(1)(h), the Attorney General has repeatedly observed:
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. 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.
95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
Implementing this legislative mandate, in
University of Kentucky v. Courier Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department in disclosing videotape of incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that Oldham County Animal Shelter compiled records relating to care of rescued animal in the process of detecting and investigating statutory or regulatory violation or that disclosure of the records would harm the agency); 03-ORD-015 (Justice Cabinet failed to adduce sufficient proof of harm to the agency from premature disclosure of requested records to sustain invocation of the exception); 05-ORD-003 (Winchester Police Department's policy of blanket nondisclosure of second page of incident reports under authority KRS 61.878(1)(h) violated Open Records Act). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
The Department for Natural Resources satisfies the first part of the three part test for successfully raising KRS 61.88(1)(h), having clearly described its role as an administrative agency in investigating statutory and regulatory violations, and prosecuting same if violations are found. Nor can it reasonably be disputed that the records at issue were compiled in the investigatory process. "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 . . . involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action for the decision to take no action." 97-ORD-129, p. 4; compare OAG 89-11. Thus, those records satisfy the second part of the three part test.
Resolution of the issue in this appeal turns on whether the Department has adduced sufficient proof of harm to the agency and its investigation that would result from premature disclosure of the requested records. We believe that it has. The Department describes particular harm to its investigation, and any potential prosecution, that would result from premature disclosure of the requested transcripts. As noted above, the Department expresses concern that "premature disclosure of the transcripts would harm the investigation through its adverse impact on the witness interview process . . . [insofar as i]nterviews of witnesses need to be spontaneous and free of the influence of knowing what others have said . . .[so as to avoid] the 'tailoring' of responses and the loss of independent recollection which is vital to the investigating process." It is this degree of specificity which the legislature contemplated in enacting KRS 61.878(1)(h) and admonishing against its use "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." KRS 61.878(1)(h). Having articulated the basis for its denial of Ms. Jafari's request in terms of the requirements of KRS 61.878(1)(h), we affirm that denial. 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); see also, 00-ORD-81; 05-ORD-259.
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 We concur with the Department in its view that the decision of state and federal investigators in West Virginia to disclose investigative records while their investigation was proceeding has no bearing on the issue of access to records generated by Kentucky investigators in the course of an ongoing investigation. The West Virginia investigators may have waived any applicable exemption from that state's public records law, or there may be no analogous exemption in the law. Ultimately, of course, West Virginia is West Virginia and not Kentucky.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.