Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Department of Financial Institutions violated KRS 61.880(1) in responding to Steve O'Daniel's June 22, 2011, request for "all records, written and electronic, relating to Target Oil and Gas Company . . ., Mike Smith or Chris Smith, Mark Irwin, or any employee of Target Gas and Oil Company" from January 1, 2003, through the date of his request. Mr. O'Daniel requested the same records for "Summit Energy, Inc., Mark Irwin or any employee of Summit Energy, Inc." for the same period. With respect to both requests, we find that the Department failed to meet its statutorily assigned burden of proof by articulating how disclosure of the records would harm the agency. The federal judge hearing this case delayed imposition of restitution for 90 days after sentencing, and the case remains open. However, the Assistant U.S. Attorney responsible for the sentencing phase of the case takes no position on disclosure of the records, and the Department offers no proof of harm that would result from their release.
In supplemental correspondence directed to this office after Mr. O'Daniel initiated this appeal, the Department explained that Target and Summit were the subject of a DFI investigation into potential violation of KRS Chapter 292, Kentucky's Security Act, that was referred to the U.S. Attorney's Office for criminal prosecution. The Department acknowledged that six defendants were sentenced in July, but asserted that the case remains open until restitution is imposed. In support of the denial of Mr. O'Daniel's request, the Department cited OAGs 91-57 and 91-92 for the proposition that "until a prosecution is complete, an investigative file is exempt from disclosure under KRS 61.878(1)(h)." The Department attached an email prepared by the Assistant U.S. Attorney who is handling the sentencing phase of the case in which he described the status of the case but expressed no opposition to disclosure of the records. 1
To facilitate our understanding of the issue on appeal, this office contacted the Assistant U.S. Attorney identified in the Department's supplemental response by telephone on August 29, 2011. We asked him if he had requested that the Department withhold the disputed records while the sentencing process continues. He indicated that he took no position on the access issue. Given this fact, and the fact that the Department failed to otherwise articulate any harm to the agency from disclosure of the records, we find that the record on appeal contains insufficient proof to support the Department's invocation of KRS 61.878(1)(h).
To begin, we find that the Department violated KRS 61.880(1) in responding to Mr. O'Daniel's June 22 requests. That statute establishes guidelines for agency response to an open records request, providing, in relevant part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) In addition, KRS 61.880(2)(c) expressly provides:
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.
(Emphasis added.) Read together, these provisions mandate an agency response that contains "particular and detailed information" and not a "limited and perfunctory response . . . ." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
In 93-ORD-125, this office expressly held that "forwarding a copy of a very brief and cursory internal memo to [the requester] does not satisfy the public agency's procedural obligations under KRS 61.880(1)." 93-ORD-25, p. 3. Specifically, we noted, the "response":
failed to directly notify "the person making the request" . . . of [the agency's] decision . . ., [did] not contain an express statement to th[e] effect [that the request is denied] . . ., [and was not] clear[ly] issued by the official custodian of the record or under his or her authority.
Id., see also 07-ORD-139.
In the appeal before us, the Department responded by forwarding a copy of an email to Mr. O'Daniel that read as follows:
We have multiple boxes relating to this request. However, the sentencing on this case will not conclude until July 14 and after that there will be restitution hearings so the case will not be closed until these proceedings have concluded.
The email to which this was attached indicated that "releasable files are not available until the case is closed." The Department's response was deficient insofar as it failed to cite the specific exception upon which reliance was placed or explain how the exception applies to the particular records withheld. It is framed in broad generalities. Accordingly, the response did not satisfy KRS 61.880(1).
Because the Department is statutorily assigned the burden of proof in sustaining its action relative to Mr. Daniel's request, it was required to not only cite the relevant exception or exceptions authorizing nondisclosure, but to explain the application of the exception or exceptions to the records withheld with particularity. See 95-ORD-3 (holding that the "mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency by KRS 61.880(2)(c)"). Moreover, "the basis for denial must . . . be articulated in terms of the requirements of the statute." Id. citing OAG 89-20. This is especially true when the exception upon which reliance is placed is KRS 61.878(1)(h). It is the single open records exception that expressly provides that it "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."
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 thirteen other exceptions to public inspection, must be "strictly construed" to afford the broadest possible access to agency records. KRS 61.871. KRS 61.878(1)(h) provides, in part, that the following agency 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; 07-ORD-139; 08-ORD-021; 10-ORD-130; 11-ORD-069.
Implementing this legislative mandate, in University of Kentucky v. Courier Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 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 predicated on the agency's failure to satisfy one or more parts of the three part test found in KRS 61.878(1)(h). 2 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 referenced prohibition on the 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.
While we may assume, for the sake of argument, that the Department qualifies as a law enforcement agency, or an agency involved in administrative adjudication, in this particular matter, and that the records withheld were compiled in the process of detecting and investigating statutory or regulatory violations, we cannot infer harm from premature disclosure where no harm has been expressly articulated. The fact that the case is still open is, standing alone, not sufficient proof of harm to satisfy the requirement of the statute. The record before us is otherwise devoid of proof that the requested records qualify for exclusion under KRS 61.878(1)(h) . In an effort to resolve this appeal, we put this precise question to the prosecutorial authority to which this investigation was referred for enforcement action, asking the Assistant U.S. Attorney to whom the case is currently assigned whether he opposed release of the records. He took no position on release, but expressed no concern that disclosure would harm the final phase of the enforcement action. The Department does not indicate that it contemplates further enforcement action in this matter or how it might otherwise be harmed by disclosure. We are therefore compelled to resolve this appeal against the Department and in favor of Mr. O'Daniel.
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.
Distributed to:
Steve O'DanielShaun T. Orme
Footnotes
Footnotes
1 Thatemail stated:
Although Judge Hood has imposed sentence on the six defendants in the case, he exercised his authority under 18 U.S.C. 3664(d)(5) to delay imposition of restitution for 90 days. Although a criminal judgment has been entered for each defendant, those judgments will doubtlessly be amended once the Court pronounces its decision concerning restitution. Restitution is an important facet of criminal sentences, particularly when victims have been harmed. In fact, restitution is mandatory in the Target Oil case under 18 U.S.C. 3663A. For this reason, the sentencing process continues for all six defendants.
2 See open records decisions cited above.