Request By:
Jon L. FleischakerJill LeMaster
Executive Director
Executive Branch Ethics Commission
Vest-Lindsey House
401 Wapping Street
Frankfort, KY 40601John R. Steffen
General Counsel
Executive Branch Ethics Commission
Vest-Lindsey House
401 Wapping Street
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Executive Branch Ethics Commission violated the Kentucky Open Records Act in denying the request of Courier-Journal reporter Tom Loftus for "a copy of any and all records which record each commissioner's vote in terminating the commission's preliminary investigation of Gov. Ernie Fletcher." In failing to initially provide detailed and particular information, as required by KRS 61.880(1), the Commission violated the Act; however, the Commission belatedly satisfied its burden of proof under KRS 61.880(2)(c) by citing the applicable exception(s) and briefly explaining how it applies. Consistent with governing precedents, namely, 97-ORD-70 and 02-ORD-44, this office must affirm the Commission's denial on the basis of KRS 11A.080(2).
The Courier-Journal also alleges a violation of the Open Meetings Act. However, this office is precluded from rendering a decision under the Open Meetings Act where the appeal has not been perfected consistent with the mandatory language of KRS 61.846(1) and (2). In relevant part, KRS 61.846(1) provides:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation.
Pursuant to KRS 61.846(2):
If a complaining party wishes the Attorney General to review a public agency's denial, the complaining party shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial. If the public agency refuses to provide a written denial, a complaining party shall provide a copy of the written complaint within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency. The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.
The Courier-Journal has provided no indication it has ever submitted a written complaint to the presiding officer of the Executive Branch Ethics Commission concerning the manner in which the vote to terminate the investigation of Governor Fletcher was taken. Therefore, the Attorney General cannot rule upon an alleged violation of the Open Meetings Act. 1
By letter directed to Jill LeMaster, Executive Director, on August 16, 2007, Mr. Loftus requested the specified voting records, noting that his request "of course, seeks the vote which you referred to in your June 27, 2007 letter to Gov. Fletcher." In a timely written response, John R. Steffen, General Counsel, advised that he was unable to provide [Mr. Loftus] with said records due to the fact that they are exempt from disclosure pursuant to KRS 61.878(1)(l) and KRS 11A.080(3)." Arguing that the Commission violated KRS 61.880(1) insofar as Mr. Steffen "gave no explanation of how those statutes apply to exempt the requested records from disclosure, " Jon L. Fleischaker subsequently initiated this appeal on behalf of his client, The Courier-Journal .
Mr. Fleischaker asserts that regardless of how KRS 11A.080(3) is construed, "KRS 11A.080(2) specifically provides that the Commission's proceedings and records relating to preliminary investigations are confidential only until a final determination is made by the Commission. Here, there is no question that [the] Commission has made its final determination. " That determination "was to terminate the preliminary investigation. " In light of that fact, Mr. Fleischaker believes the proceeding and records relating to the preliminary investigation are no longer confidential, and the requested documents reflecting the votes of the commissioners should be disclosed under the Open Records Act. "
Further, Mr. Fleischaker argues in addition to "the general mandate of disclosure under the Open Records Act, " disclosure of the records at issue is mandated by the Open Meetings Act. More specifically, KRS 61.835 "requires that the minutes of action taken at every meeting of a public agency, such as the Commission, setting forth an accurate record of votes and actions at such meetings, must be recorded and open to the public." As long recognized by the Attorney General, the Open Meetings Act requires, at a minimum, that a public agency "create minutes recording the votes of its members. See OAG 81-387." Likewise, the Attorney General "has interpreted the statute as prohibiting a public agency from voting by secret ballot or otherwise failing to indicate in its minutes how each member voted on each issue. See, e.g ., OAG 91-196, 01-OMD-141." In sum, The Courier-Journal "is entitled - both under the Open Records Act and the Open Meetings Act - to obtain the requested records;" nothing in the Open Records Act nor in KRS 11A.080(3) "permits the Commission to make this vote secretly."
Upon receiving notification of the Courier's appeal from this office, Mr. Steffen responded on behalf of the Commission, explaining that Governor Fletcher "had publicly disclosed a June 27, 2007, letter sent to him by the Commission notifying him that based on a the vote of a majority of the Commission members, the Commission had terminated the preliminary investigation. " In refuting Mr. Fleischaker's argument regarding KRS 61.880(1), Mr. Steffen quotes the language of KRS 61.878(1)(l) and notes that his letter referenced that provision and "then identified KRS 11A.080(3) in order to explain how the cited exception applied to the withheld record." Acknowledging that KRS 11A.080(3) "does not specifically address the confidentiality aspect of the Commission's preliminary investigations," Mr. Steffen asserts that such investigations are "confidential pursuant to KRS 11A.080(2). Perhaps it was an oversight on the part of [Mr. Steffen] that this section of KRS 11A.080 was not cited" in the Commission's initial response to Mr. Loftus, along with KRS 11A.080(3), "but one need only review the statute as a whole, rather than just the cited specific section, to understand the intent of the reference." As explained by Mr. Steffen, the preliminary investigation of Governor Fletcher "was terminated pursuant to KRS 11A.080(3), and preliminary investigations of the Commission are confidential by enactment of the General Assembly." Accordingly, records concerning such investigations are "exempt from disclosure except for the narrow exception specifically addressed in KRS 11A.080(3) when, in the unlikely event that an alleged violator publicly discloses the existence of such an investigation, the Commission may make public any documents which were issued to the alleged violator. " Such documents "were in fact provided to the Courier-Journal."
In relevant part, KRS 11A.080(2) provides: "All commission proceedings and records relating to a preliminary investigation shall be confidential until a final determination is made by the commission" with limited exceptions not applicable in this case. When viewed in conjunction with KRS 11A.080(3), 2 pursuant to which the Commission terminated the preliminary investigation of Governor Fletcher and initially denied Mr. Loftus' request, KRS 11A.080(2) validates the Commission's denial. As correctly argued by Mr. Steffen, this office previously resolved a similar issue in favor of the Commission. Noting that KRS 61.878(1)(l) operates in tandem with KRS 11A.080(2) to prohibit disclosure of such records until a final determination is made, the Attorney General found in 97-ORD-90 that the "language of this provision is clear on its face."
More recently, this office adopted the reasoning of 97-ORD-90 in reaffirming that the specific confidentiality provision codified at KRS 11A.080(2) overrides KRS 61.878(3), noting that KRS 11A.080(2) "does not extend to records generated in the course of a KRS 11A.100 adjudicatory hearing. " 02-ORD-44, p. 3. At issue in that appeal was a request for minutes of the Commission's May 11, 2001, meeting at which the Commission initiated a preliminary investigation of the requester's conduct; the Commission ultimately terminated the investigation and issued a "termination letter" to him. Id., p. 2. Contrary to that requester's belief, and that of the Courier , "a finding of no probable cause is not a final determination such as that reached at the conclusion of a full-blown adjudicatory hearing conducted under KRS 11A.100(3)." Id., p. 4. Just as the investigation into the requester's conduct in 02-ORD-44 "did not proceed to an adjudication but was terminated in the preliminary investigative phase," the investigation into Governor Fletcher's conduct was terminated under KRS 11A.080(2) . Id. Accordingly, 02-ORD-44 is directly on point. "Pursuant to KRS 11A.080(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), [Mr. Loftus] is foreclosed from inspecting records relating to the preliminary investigation, including the minutes of the Commission's executive session [.]" Id., p. 4. 3
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 However, this office questions whether the Commission's practice of voting on such matters in closed session complies with, and promotes the underlying purpose of the Open Meetings Act. Given KRS 61.815(1)(c), pursuant to which no final action may be taken at a closed session, and KRS 61.835, requiring that "minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions shall be promptly recorded and such records shall be open to public inspection," the Commission may wish to consider reevaluating its current practice by taking final action in open session without revealing the identity of the alleged violator, and recording that vote in the publicly accessible minutes of the meeting.
2 KRS 11A.080(3) provides:
If the commission determines in the preliminary investigation that the facts are not sufficient to constitute a violation of this chapter, the commission shall immediately terminate the investigation and notify in writing the complainant, if any, and the person alleged to have committed a violation. The commission may confidentially inform the alleged violator of potential violations and provide information to ensure future compliance with the law. If the alleged violator publicly discloses the existence of such action by the commission, the commission may confirm the existence of the resolution and, in its discretion, make public any documents which were issued to the alleged violator .
(Emphasis added).
3 However, this office was not convinced that the "protection from disclosure of Commission records afforded by KRS 11A.080(2) extends to the minutes of the open, public portions of Commission meetings." 02-ORD-44, p. 6. Having confirmed that the Commission "convenes in an open, public session and retires to executive session for proceedings relating to preliminary investigations[,]" the Attorney General held that "minutes of its meetings reflecting the call to order, the presence of a quorum, and/or the names of the members present, are not 'records relating to a preliminary investigation, ' are not made confidential pursuant to KRS 11A.080(2), and must therefore be disclosed." Id.