Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Nortonville violated the Kentucky Open Records Act in denying Hopkins County Attorney J. Todd P'Pool's May 25, 2010, request for ten categories of specified financial and operational records, including audits, payroll records, minutes of Nortonville City Council meetings, certain accounting records, the "name and address of each financial institution" where the City has accounts containing public funds, and the "name, address and telephone number of each member of the Nortonville City Council for the years 2002 to the present." Although the City was authorized in this instance to invoke KRS 61.878(1)(h) on behalf of the Kentucky State Police, which is clearly a "law enforcement agency, " and the City has arguably demonstrated the harm that would result from premature disclosure of the records, the fact remains that any existing records which are responsive to Mr. P'Pool's request were prepared independent of the ongoing criminal investigation, rather than "compiled in the process of detecting and investigating statutory or regulatory violations." Because the City is unable to satisfy all three of the elements required for invocation of KRS 61.878(1)(h), and that exception cannot be used "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884," this office must conclude that its reliance on KRS 61.878(1)(h) was misplaced.
In his May 25 letter, Mr. P'Pool advised Mayor Barry Marril that he did not wish "to frustrate or impede" the City's ongoing review of its finances, but would "be moving forward under the authority of KRS 61.870 and my inquiry may be different than that of yours or the City Council." Upon completion of his inquiry, Mr. P'Pool plans to "issue a full report of my findings to the citizens of Hopkins County." In a press release also issued on May 25, Mr. P'Pool announced that he would be "launching a formal inquiry into the financial management of the City of Nortonville and its day-to-day operation from 2005 to the present." Specifically, Mr. P'Pool requested the following:
1. [A] copy of all audits for the City of Nortonville for the years 2005 to the present.
2. [A] copy of all payroll records for the City of Nortonville for the years 2005 to the present, including the name of each city employee, time of employment and salary level.
3. [T]he name and address of each financial institution where any account may exist in the name of the City of Nortonville or whereby any agent or employee of the city may have access on behalf of the City of Nortonville.
4. [T]he name and address of each financial institution and the name of the account where public funds are being held on behalf of the City of Nortonville.
5. [A] copy of the minutes of each session, both regular and special, wherein official business of the City of Nortonville was conducted between the years of 2002 to the present.
6. [A]n income statement and balance sheet for the City of Nortonville for the years 2005 to the present.
7. [A]n accounting of all expenditures made by the City of Nortonville for the years 2005 to the present.
8. [A]n accounting of all income realized by the City of Nortonville for the years 2005 to the present.
9. [A]n accounting of all present outstanding debts of the City of Nortonville.
10. [T]he name, address, and telephone number of each member of the Nortonville City Council for the years 2002 to the present.
In a timely written response, City Attorney John Whitfield denied Mr. P'Pool's request in its entirety. Mr. Whitfield initially advised Mr. P'Pool that KRS 69.210 "outlines the duties of the county attorney," which do not include "the power and/or authority" to conduct a "'formal inquiry' as outlined in your press release. " Citing McCollum v. Garrett, 880 S.W.2d 530, 535 (Ky. 1994), Mr. Whitfield asserted that the Kentucky Supreme Court "made clear that investigative actions by the prosecutor, such as the ones you seek to impose on Nortonville, are outside the jurisdictional parameters of your authority such that any immunity for these actions as prosecutor would be lost[.]" Before summarizing the remainder of Mr. Whitfield's response, this office notes that, as the Attorney General has often recognized, the role of this office in adjudicating an Open Records dispute is narrowly defined at KRS 61.880(2)(a). The Attorney General is not authorized to deviate from that directive by resolving issues beyond our statutorily mandated scope of review; accordingly, this office makes no finding on the issue of whether Mr. P'Pool is authorized to conduct a "formal inquiry" under KRS 69.210. 1 However, the City further explained that as of May 25, the date of Mr. P'Pool's request and press release, and since April 2010, Nortonville has been the subject "of a formal investigation conducted by the [KSP]," which a member of the City Council requested.
According to Mr. Whitfield, the investigation "is presently being conducted by the detectives at Post 2 of the KSP, whereby the KSP has requested a voluminous amount of financial documents and information that mirrors most if not all of the information" requested. The investigation "is being conducted with the full cooperation of the City." Mr. Whitfield further advised Mr. P'Pool that Commonwealth's Attorney David Massamore had confirmed "that neither his office nor that of KSP Post 2 was aware of your request for a 'formal inquiry' prior to your press release. " The City was told "that both entities are of the opinion that release of the documents and information that you request would seriously undermine and compromise the ongoing investigation that the KSP is currently conducting." Quoting the statutory language found at KRS 61.878(1)(h), Mr. Whitfield argued that disclosure of the documents requested to Mr. P'Poole's office, which "are the very subject of an ongoing criminal investigation by the KSP compromises the proper investigation by the KSP." In the City's view, 2 KRS 61.878(1)(h) "permits exemption of these documents" 3 and prior decisions validate this position. By letter dated June 3, Mr. P'Pool initiated this appeal, clarifying that the "Office of the Hopkins County Attorney has not participated in any criminal investigation regarding activities" of the City, but "[n]otwithstanding any pending criminal investigation by KSP," he contends that "it is impossible for criminal liability to attach to the [City]," which "cannot be charged with a crime."
Upon receiving notification of Mr. P'Pool's appeal from this office, Mr. Whitfield responded on behalf of the City, initially reiterating that KSP has been "investigating the affairs of certain management of the [City], requesting a litany of financial documentation coupled with computers owned by [the City]." Mr. Whitfield advised that, '[u]pon information and belief," a member of the City Council requested this investigation following the resignations of former Mayor James Noel and former City Clerk LeeAnn Allen. "It is believed" that the KSP investigation centers on "alleged financial improprieties and other irregularities," Mr. Whitfield continued, "but the depth of this investigation at this juncture remains unclear." On or about April 19, 2010, Mr. Whitfield explained, three KSP detectives arrived at Nortonville City Hall, announced their intention to conduct an investigation due to information received from a member of the City Council, and then removed "numerous computers" and indicated their desire to interview members of the City Council and the City Clerk. In addition, KSP "has subpoenaed hundreds of financial documents" from the City and may require further information from the City during this investigation.
Having summarized the events which precipitated this appeal, Mr. Whitfield argued that Mr. P'Pool's inquiry has the "exact scope" of the investigation by KSP, as evidenced by his request letter. Mr. Whitfield acknowledged that, in this instance, "as agreed by all parties herein, criminal liability . . . cannot attach to the City of Nortonville." Further discussion of this issue is therefore unwarranted. 4 Turning to Mr. P'Pool's next argument, whether he sought records of a "law enforcement agency, " as required to properly invoke KRS 61.878(1)(h), Mr. Whitfield relied primarily upon 09-ORD-143 which, in short, validates the City's position that it was authorized to deny access per KRS 61.878(1)(h) on behalf of KSP, 5 which is clearly a "law enforcement agency, " assuming that it could satisfy the remaining two prongs of that exception. In attempting to satisfy the final prong by demonstrating the harm that would result from premature disclosure, Mr. Whitfield asserted that release of the requested information/records "would harm the investigation of the KSP by clearly influencing witness statements," revealing evidence "to be used during trial in the event any charges were brought by the KSP," and "tainting the potential jury pool." 6 Although the City has arguably demonstrated sufficiently the harm that may result from disclosure of the records to which Mr. P'Pool requested access, this office does not reach that question as City has not satisfied the second requirement of KRS 61.878(1)(h).
Consistent with the fundamental principle that "free and open examination of public records is in the public interest," KRS 61.878(1)(h), like each of the other exceptions to the Open Records Act, must be "strictly construed" so as to afford the broadest possible access to public records. KRS 61.871. In relevant part, KRS 61.878(1)(h) authorizes public agencies to withhold the following public records in the absence of a court order:
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 records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. (Emphasis added).
Resolution of the question presented hinges on the italicized language, which has been construed to mean records "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process," and not records "which were 'segregated' in connection with an investigation" but "not made uniquely in a specific detection and investigation process." OAG 89-11, p. 3.
When, as in this case, a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing the relevant language of this provision, the Attorney General has repeatedly observed:
The agency must first establish that it is a law enforcement agency or an agency involved in an 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 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 (emphasis added); 04-ORD-044; 03-ORD-15; 02-ORD-179. It is beyond dispute that KSP, on whose behalf the City denied the request, is a law enforcement agency as required to trigger the application of KRS 61.878(1)(h); accordingly, the question becomes whether the records in dispute were "compiled in the process of detecting and investigating statutory or regulatory violations." Here, as in OAG 89-11, 03-ORD-017, 05-ORD-078, and 10-ORD-075, this office concludes that the public agency has not satisfied its burden of proof under KRS 61.880(2)(c) relative to this requirement.
In University of Kentucky v. The Courier- Journal and Louisville Times Co., 830 S.W.2d 373, 377 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting the University's claim that records it compiled during the course of a NCAA investigation were exempt from disclosure pursuant to KRS 61.878(1)(h). As the Court observed, "[t]his 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." Because the University failed to satisfy this threshold requirement, the Court rejected its 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, the Kentucky Board of Medical Licensure failed to justify its denial of a request with proof of the harm which would result from premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in a 911 tape would harm the city was insufficient to satisfy its statutory burden of proof relative to KRS 61.878(1)(h)); 96-ORD-155 (Department of Insurance was not engaged in the investigation of statutory or regulatory violations, would not be harmed by disclosure of rate filings, and thus improperly relied upon KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on the "law enforcement exception" to withhold the police and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 01-ORD-67 (Cabinet for Health and Family Services failed to demonstrate that records of Medicaid payments for work performed by Dr. Steve Henry that were under examination by a federal grand jury were "compiled in the process . . ."); 02-ORD-179 (the record on appeal was devoid of proof that the Oldham County Animal Shelter compiled records concerning the care of a rescued animal in the process of detecting and investigating statutory or regulatory violations or that disclosure of the records would harm the agency). In sum, the issue presented has arisen in various contexts, but the analysis remains the same.
In other words, the records were generated contemporaneously with, or prior to the incident(s) which resulted in the subject investigation, presumably in the normal course of business, in fact, and later "segregated" in connection therewith, as opposed to being records that were "compiled in the process of detecting and investigating statutory or regulatory violations." 7 OAG 89-11, p. 3. Because this necessary element has not been satisfied, consideration of whether the City has adequately demonstrated the harm that would potentially result from premature disclosure of the records is unnecessary. See 10-ORD-075; 05-ORD-078.
In general, the records being sought and/or any existing records containing the information requested can be properly characterized as financial and operational records of the City. The Attorney General has consistently recognized that such records must be produced for public inspection. "There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of ensuring agency accountability." See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 89-91, pp. 3-4 ("Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets of the city" are among the categories of records properly characterized as "generally recognized public recordation subject to public scrutiny in a city clerk's office"); OAG 90-30, p. 3 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 91-7, p. 3 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ); 98-ORD-17 (records documenting deposits, interest rates, account fees, and a list of all certificates of deposit or repurchase agreements); 04-ORD-113 (bank statements). Of the ten categories of records and information requested, this office is "unable to identify any which would not be subject to disclosure" if either currently in existence, or, in the case of information, it can be found in one or more existing records. 02-ORD-232, p. 4.
Although Items 3, 4, 10, and part of Item 2, are requests for information, rather than properly framed requests for public records, and "public agencies are not required to compile information to satisfy [a request for information]," public agencies are required "to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5. If a requester cannot identify the records he wishes to inspect with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " OAG 76-375, p. 3.
Because the requested financial and operational records do not fall within the parameters of KRS 61.878(1)(h), the City cannot deny access on that basis; however, the City is permitted to deny some of the requests for other reasons. For instance, the City is only required to produce any existing records which are responsive to Mr. P'Pool's request. It is not required to create records or lists, or provide "information" generally. The Open Records Act only requires a public agency to provide access to public records which are not exempt by law. OAG 79-547, p. 2; 10-ORD-122. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." 02-ORD-165. p. 5, OAG 91-12, p. 5.
The City may also be authorized to redact some information from one or more of the records which are potentially responsive to Mr. P'Pool's request, and may be able to successfully build a case for withholding some records under one or more of the other exceptions codified at KRS 61.878(1)(a)-(n). This office reminds the City that in order to comply with KRS 61.880(1), and satisfy its burden of proof under KRS 61.880(2)(c), it must cite the applicable statutory exception and explain how it applies to any records or information withheld, and must "separate the excepted and make the nonexcepted material available for inspection" per KRS 61.878(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.
J. Todd P'PoolBarry MarrilJohn C. Whitfield
Footnotes
Footnotes
1 In Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Court observed that the relevant "analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Accordingly, this office has consistently recognized that "generally speaking, neither the identity of the requesting party nor his purpose in submitting a request is legally relevant." 10-ORD-062, p. 7; 10-ORD-106.
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2 Although Mr. Whitfield also cited KRS 61.878(1)(i), he presumably intended to refer to (1)(l), which he quoted along with (1)(h), but which has no application here as (1)(l) incorporates other provisions of the Kentucky Revised Statutes which prohibit, restrict, or otherwise make confidential specific records or information, which may or may not also be protected under one or more of the specific exceptions to the Open Records Act codified at KRS 61.878(1).
3 In closing, Mr. Whitfield advised Mr. P'Pool that the records he seeks "are currently in active use, storage or are otherwise unavailable at this time," implicitly relying upon KRS 61.872(5), which is appropriately invoked when the agency is delaying access for a specified period of time, not indefinitely denying access, yet Mr. Whitfield also reiterated that for the reasons noted, the City "at this time will not produce these records." To the extent the City is attempting to argue that all of the records are now KSP records, the Attorney General rejected that argument in 09-ORD-143, pp. 3-4 (adopting 98-ORD-100).
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4 Given this determination, the Attorney General does not address Mr. Whitfield's alternative position, namely, that for purposes of KRS 61.878(1)(h) the City "is considered an agency involved in administrative adjudication. "
5 A copy of 09-ORD-143 (recognizing that "where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the record of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency") is attached hereto, and pp. 4-7 are incorporated by reference.
6 Attached to Mr. Whitfield's response is a copy of a letter dated June 14, 2010, in which Mr. Massamore verified that in April 2010, KSP Post 2 "received a formal request to conduct an investigation into allegations of financial irregularities involving certain Nortonville city employees." KSP Post 2 then contacted Mr. Massamore's office to request assistance. Since April 2010, the Commonwealth's Attorney's Office in Madisonville, Kentucky "has been working directly with Detective Dan Morck from KSP and with the Drug Enforcement Special Investigations Unit from Bowling Green, Kentucky," which is also providing assistance.
Mr. Massamore clarified that he was not contacted by Mr. P'Pool or anyone representing his interests nor has he "seen the copy of the open records request or his appeal." His only contact in relation to this matter "is as a result of a phone conversation with Mr. Whitfield requesting that" he contact this office to "confirm that there is a KSP Post open investigation into the financial irregularities of Nortonville city employees." KSP Post 2 has confirmed to Mr. Massamore its "opposition to a separate investigation into the same subject matter." In addition, the "chief detective at Post 2" apparently confirmed to Mr. Massamore his "intent to contact Mr. P'Pool to request that he not continue his investigation to avoid any potential harm to KSP's investigation" though Mr. Massamore is unable to confirm that he actually did speak with Mr. P'Pool.
Mr. P'Pool and Mr. Whitfield subsequently addressed the content of Mr. Massamore's June 14 letter in separate letters dated June 15, essentially reiterating their previous arguments regarding the need for the records and the harm that would result from disclosure, respectively. Because this office does not reach the question of whether the City has demonstrated sufficient harm, further discussion of this additional correspondence is unnecessary.
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7 To the extent 97-ORD-52 and 02-ORD-4, upon which the City relied in good faith, and which remain valid regarding the analysis of whether the City is permitted to invoke KRS 61.878(1)(h) on behalf of KSP, are inconsistent with our holding, those decisions are hereby modified accordingly.
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