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 Associated Press reporter Joe Biesk for "access to or copies of any documents, written or electronic, pertaining to the vote by which the Executive Branch Ethics Commission decided to conclude its investigation into Gov. Ernie Fletcher." In a timely written response, John R. Steffen, General Counsel, responded on behalf of the Commission, advising that he was "unable to provide [Mr. Biesk] 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)." By letter dated August 22, 2007, Mr. Biesk initiated this appeal from the denial of his request. Although the Commission's initial response was procedurally deficient, the Commission ultimately satisfied its burden of proof under KRS 61.880(2)(c) by citing the applicable exception(s) and briefly explaining how it applies; the Commission's argument relative to KRS 11A.080, specifically, 11A.080(2) and (3), is validated by prior decisions of this office.
In 07-ORD-201, this office was asked to determine whether the Commission violated the 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." Consistent with 97-ORD-70 and 02-ORD-44, this office resolved the question presented in favor of the Commission; the reasoning of 07-ORD-201, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. When viewed in conjunction with KRS 11A.080(3), pursuant to which the Commission terminated the preliminary investigation of Governor Fletcher and initially denied Mr. Biesk's request, KRS 11A.080(2) validates the Commission's denial. Because the investigation of Governor Fletcher's conduct "did not proceed to an adjudication but was terminated in the preliminary investigative phase," and a "termination" does not constitute a "final determination" within the meaning of KRS Chapter 11A, the Commission properly denied Mr. Biesk's request on the basis of KRS 11A.080(2). 02-ORD-44, p. 4.
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.