Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of the Attorney General -- Consumer Protection Division (hereinafter identified as "CP") violated the Kentucky Open Records Act in denying Antonio F. Dias's May 24, 2011, request, submitted on behalf of his client, Stautzenberger College Education Corporation, d/b/a Brown Mackie College, and American Education Centers, Inc. d/b/a Brown Mackie College-Northern Kentucky (collectively "Brown Mackie"), for "any subpoenas that the Attorney General's [O]ffice has served on any person or entity including, but not limited to ACICS, requesting that the person or entity produce documents relating to the Attorney General's investigation of Brown Mackie," and "copies of any documents that any person or entity produces in response to those subpoenas. " In a timely written response, Executive Director Todd E. Leatherman denied Mr. Dias's request on the basis of KRS 61.878(1)(h), "as the documents, if any, were compiled in the process of detecting and investigating alleged statutory violations, [CP] is actively investigating Brown Mackie College, and the release of the information requested would harm [CP's] ability to continue and complete its investigation." Because CP is unquestionably a "law enforcement agenc[y]" in this context, and there is no dispute that such records "were compiled in the process of detecting and investigating statutory or regulatory violations," 1 resolution of this appeal turns on whether CP has adequately demonstrated that disclosure of the records at issue would harm its ongoing investigation of Brown Mackie as required to successfully invoke KRS 61.878(1)(h). For the reasons outlined in the responses of CP, this office concludes that CP satisfied its burden of proof under KRS 61.880(2)(c) in demonstrating how premature disclosure of the actual subpoenas would harm the ongoing investigation of Brown Mackie; accordingly, its denial on the basis of KRS 61.878(1)(h) is affirmed. In addition, this office finds that KRS 367.250, which CP ultimately invoked, prohibits the agency from disclosing information contained in records obtained pursuant to those subpoenas.
In denying Mr. Dias's request, CP initially noted that it has "issued a Civil Investigative Demand and Subpoena to [Brown Mackie] and has an open investigation of the practices of [Brown Mackie] regarding compliance with the Kentucky Consumer Protection Act." Having invoked KRS 61.878(1)(h), CP advised Mr. Dias that "[p]remature disclosure of the information you are seeking could lead to the manipulation of evidence to be provided to [CP] in the course of the investigation and could affect the extent and types of information Brown Mackie or other sources provide in response to future demands [CP]." CP further declined to "acknowledge whether and to what extent there are records" of the sort you requested as "even identifying the existence/non-existence of a subpoena to a specific entity and/or that such entity produced documents in response thereto would reveal the Office's investigative processes, including identifying its sources of information and the extent of the information the Office has been able to compile for use in a law enforcement action." 2 Mr. Dias subsequently initiated this appeal on behalf of Brown Mackie by letter dated August 11, 2011. 3
Because Brown Mackie has already complied with CP's subpoena, Mr. Dias argued, "and thus cannot 'manipulate evidence,'" its explanation of the "purported 'harm' it would suffer is speculative and without foundation." Further, in Brown Mackie's view, CP's "refusal to acknowledge the existence of the requested records relies on a faulty premise that the records are somehow protected by an extra layer of secrecy, such as that afforded to a grand jury subpoena. " Quoting the language of KRS 61.878(1)(h), and citing prior decisions of this office applying that exception, Brown Mackie further asserted that CP has failed to demonstrate the harm that would result from premature disclosure of the records being sought, instead making "a rather conclusory and blanket statement that premature disclosure of the information could lead to the manipulation of evidence to be provided" to it.
According to Mr. Dias, the denial by CP was "overly broad and unsubstantiated" insofar as it declined to acknowledge the existence of subpoenas or records provided in response thereto because such information would reveal the agency's investigative processes, . . . ." While CP "may have a right to protect the identity of certain confidential informants," Mr. Dias argued, "this right does not extend to other types of informants or providers of documents and information." The refusal to acknowledge the existence of such records, Brown Mackie reasoned, "also makes it impossible to determine whether [CP] has made any effort to segregate or otherwise redact producible documents." Reiterating that the subpoenas requested are not grand jury subpoenas, Brown Mackie maintained that "their existence and contents are not cloaked in ultimate secrecy." Brown Mackie "is already aware that a subpoena was served on ACICS," and, to the extent that existence of a subpoena can reveal the "investigative processes" of CP, it argued, "those processes have already been revealed." Relying upon legal authority from another jurisdiction, Brown Mackie further asserted that "[n]othing requires any recipient of a subpoena to keep the subpoena or documents produced pursuant to the subpoena secret."
As further support for its position, Brown Mackie cited OAG 89-11 (police department improperly relied on KRS 61.878(1)(h) in denying newspaper's request for tapes of radio transmissions recorded when a police officer was killed as the agency did "not describe any harm to the agency that would result from disclosure" ), and a number of decisions in which agencies failed to satisfy the second and/or third prong of the KRS 61.878(1)(h) test. In Brown Mackie's view, the description of harm provided by CP "is even more deficient than the statement [tape requested "provides valuable information of an investigative and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect"] made by the county police described in OAG 89-11." 4 Summarizing its earlier arguments, Brown Mackie observed that it "simply seeks access to information that will allow it to address more knowledgeably the Attorney General's questions and concerns in his investigations and to ascertain the accuracy and completeness of the information which the Attorney General has received." In closing, Brown Mackie contended that CP "should not be permitted to invoke KRS 61.878(1)(h) as a shield 'to delay or impede' the right of access granted by" the Open Records Act, which, in its view, "is the effect of [CP's] denial of [its] request."
Upon receiving notification of Brown Mackie's appeal from this office, Mr. Leatherman supplemented his response on behalf of CP, initially explaining that CP "has an open and active investigation into [Brown Mackie] for possible violations of the Consumer Protection Act, KRS 367.110 to 367.300." As part of that investigation, he explained, CP served Brown Mackie with a CID pursuant to KRS 367.240 and .250. CP reiterated that premature disclosure of the subpoenas and the information provided in response thereto would impede the ability of CP to "continue and complete its investigation" for the reasons previously identified. Further, confirming the existence of the subpoenas or the information provided, if any, would reveal the investigative processes by identifying sources of information, the kind of information being sought by CP, and the kind of information CP "has been able to compile for use in a law enforcement action against [Brown Mackie] and other for-profit colleges," and it would reveal the intentions of CP with regard to Brown Mackie and other targets of investigation. CP cited OAG 90-116 (permitting inspection of a subpoena would harm the subject investigation in prematurely revealing the documents, materials, or issues that are being reviewed and scrutinized) as further support for its position.
With regard to information that may have been obtained in response to a subpoena (s), CP further argued, KRS 367.250 provides that such information "'may not be made public or disclosed by the Attorney General or his employees beyond the extent necessary for law enforcement purposes in the public interest.'" Accordingly, CP concluded, "records and information obtained in response to a subpoena are exempt from disclosure pursuant to KRS 61.878(1)(l) which exempts from disclosure 'all public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.'" The "most obvious fallacy" in Brown Mackie's argument that no opportunity exists for it to manipulate evidence given that it has fully complied with the CID, Mr. Leatherman argued, is that it "presupposes that there will not be follow-up demands from [CP] to it or to other persons as it continues the investigation." Brown Mackie's admitted intention of using the information to "more knowledgeably address" the questions and concerns of CP, Mr. Leatherman reasoned, "suggests that [Brown Mackie] may intend to provide additional information" to it, and further illustrates that Brown Mackie "understands that it may still be required to produce evidence" in connection with the ongoing investigation. Thus, CP concluded, "there is still a substantial concern for manipulation and tailoring of evidence resulting from the premature disclosure of the information."
Additionally, Brown Mackie's desire to assess the "accuracy and completeness" of its responses to CP illustrates the inherent risk of prematurely disclosing records compiled as part of an ongoing investigation. In CP's view, Brown Mackie "or any other persons who would request this information, may influence the information being compiled by discussing with sources what has or has not been provided or what will be provided" to it. Further, other potential witnesses or information sources "could be influenced if they learn the scope and types of information" that CP has requested from others and "tailor their evidence accordingly." Citing 05-ORD-193 (agency was justified in withholding records because disclosure "could influence statements and testimony of witnesses") and 06-ORD-164 (reliance on KRS 61.878(1)(h) upheld as disclosure of witness interviews would lead to the "tailoring of responses and the loss of independent recollection"), CP asserted that "[a] legitimate concern that evidence may be tailored or influenced by premature release of information gathered by the investigating agency is well-recognized as justifying" reliance on KRS 61.878(1)(h).
CP then questioned why Brown Mackie is requesting "the purported 'subpoena' to ACICS'" given that it already knows the subpoena exists. According to CP, Brown Mackie's identity "as both the target of the investigation and the entity seeking disclosure of the records proves the correctness of [its] denial" under authority of KRS 61.878(1)(h). "Obviously," CP concluded, prematurely disclosing to Brown Mackie "the persons/entities who may have received a subpoena (and thus, concomitantly, those who have not received a subpoena) and the types of requests made regarding [its] trade practices could harm" the investigation. For all of the foregoing reasons, CP asked that its denial of Brown Mackie's request on the bases of KRS 367.250, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h), be upheld. Having reviewed the mandatory language of KRS 367.250 and existing authority regarding KRS 61.878(1)(h), this office finds that CP's reliance on both was justified.
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 KRS 61.878(1)(h), the Attorney General has repeatedly observed that "[i]n order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. 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. Id., pp. 1-2. 5 See 00-ORD-196; 02-ORD-179. Because CP is a law enforcement agency in this context, and the requested subpoenas, or information and records provided in response thereto, were compiled in the process of detecting and investigating statutory or regulatory violations, which Brown Mackie does not dispute, resolution of this appeal turns on whether CP has adequately demonstrated the harm that would result from premature disclosure of those records. The fact that the investigation is ongoing is not enough, standing alone, to justify a denial. 07-ORD-147, p. 8; 10-ORD-130.
In University of Kentucky v. Courier-Journal & Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 6 In sum, the issue of whether a public agency has satisfied the criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains unchanged.
Given the statutory mandate that the exemptions be strictly construed, found at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three prongs of the test contained therein. As noted, the outcome of this appeal does not hinge on either of the first two prongs of KRS 61.878(1)(h), both of which are satisfied; instead, the determinative question is whether CP has adequately demonstrated the harm that would result from premature disclosure of the requested subpoenas. More than a "bare claim" is required to satisfy this prong. 06-ORD-035, p. 5; OAG 89-11. CP initially advised that disclosure "could lead to the manipulation of evidence to be provided" to it during the course of the ongoing investigation of Brown Mackie and "could affect the extent and types of information Brown Mackie or other sources provide in response to future demands." Additionally, CP credibly argued that "even identifying the existence/non-existence of a subpoena to a specific entity and/or that such entity produced documents in response thereto" would reveal the "investigative processes, including identifying its sources of information and the extent of the information [it] has been able to compile for use in a law enforcement action."
Even assuming this assertion did not constitute more than a "bare claim," logic dictates that "a substantial concern for manipulation and tailoring of evidence" still exists in this case given that CP may issue additional demands for evidence to Brown Mackie and/or other parties. Also illustrative of the potential harm that could result from disclosure is the very real possibility that, whether intentionally or not, Brown Mackie "or any other persons who would request this information, may influence the information being compiled by discussing with sources what has or has not been provided or what will be provided" to CP. It further stands to reason that witnesses and other parties "could be influenced if they learn the scope and types of information" that CP has requested from others and "tailor their evidence accordingly." Finally, the concern that revealing the identities of those served with subpoenas "and thus, concomitantly, those who have not received a subpoena, " and the kinds of requests made regarding Brown Mackie's trade practices, could harm CP's ongoing investigation is entirely legitimate. "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)." 06-ORD-164, p. 9. Even assuming, for the sake of argument, that CP did not initially demonstrate the harm that would result from disclosure with adequate specificity, the reasons outlined above, when viewed in context and in light of existing authority, satisfy this prong.
In OAG 90-116, upon which CP partially relied, this office affirmed the denial by the Department of Agriculture, Division of Animal Health of a request for subpoenas that were served on it by the Federal Bureau of Investigation, agreeing that allowing disclosure of the requested subpoenas "could harm the investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized" by the investigating agency. Id., p. 3. See 02-ORD-146 and 06-ORD-185 (relying partially upon OAG 90-116 in affirming denials by agencies on the basis of KRS 61.878(1)(h)). Although the facts which prompted that appeal differ somewhat from those presented here, inasmuch as the subpoenas in dispute were served on the state agency rather than by it, as in this appeal, the underlying rationale of the resulting decision, quoted above, is equally applicable on these facts. Further support for this conclusion is found in, for example, 05-ORD-259 (holding that Bowling Green Police Department satisfied this burden when it expressed concern that if requested incident report, which contained a lot of investigative detail, was later corroborated by a witness, the argument could be made that the witness learned of the details from release of the report and not from actual firsthand knowledge). This office found the agency's description of the harm to its investigation, and the prospective law enforcement action, which might result from premature disclosure of the disputed incident report satisfied the requirements of KRS 61.878(1)(h). Likewise, in 01-ORD-217, this office upheld the denial of a request for a grand jury subpoena served on the Kentucky Transportation Cabinet by the FBI relating to a joint criminal investigation by it and the Office of the Attorney General into the actions of the Division of Driver Licensing on the basis of KRS 61.878(1)(h), finding the Cabinet's description of the harm that would result from premature disclosure (it would "alert persons who heretofore have not been notified that they or their actions are being looked into") minimally satisfied its burden.
A review of both 05-ORD-193 (agency justified in withholding records on basis of KRS 61.878(1)(h) because "no definite conclusions have been reached" pending results of testing, and information such as "times of calls, distances, etc. are important in determining if witness statements "are accurate and match the evidence" so disclosure "could influence statements and testimony of witnesses") and 06-ORD-164 (agency expressed 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"), further validates our holding. As in the latter decision, the agency has demonstrated "particular harm to its investigation, and any potential prosecution, that would result from premature disclosure of the requested [records]." 06-ORD-164, p. 9. See also 97-ORD-52 (Public Corruption Unit of Attorney General's Office properly denied request for records compiled in active investigation on the grounds that premature disclosure would divulge information to subjects who had not yet been interviewed, and thus have a direct bearing on the outcome of the case). Because CP has established that premature disclosure of the subpoenas at issue would harm its ongoing investigation of Brown Mackie, its denial of Mr. Dias's request is affirmed on the basis of KRS 61.878(1)(h).
Although CP has arguably demonstrated that any records/information provided in response thereto could also be withheld on that basis, consideration of this argument is unwarranted given that KRS 367.250 speaks directly to this issue. In relevant part, KRS 367.250 expressly provides that in order "[t]o accomplish the objectives and to carry out the duties prescribed by KRS 367.110 to 367.300, the Attorney General . . . may issue subpoenas to any person, . . . provided that information obtained pursuant to the powers conferred by KRS 367.110 to 367.300 shall not be made public or disclosed by the Attorney General or his employees beyond the extent necessary for law enforcement purposes in the public interest ." (Emphasis added.) 7 Among those records excluded from application of the Open Records Act in the absence of a court order are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). Because the mandatory language of KRS 367.250 is facially unambiguous, and is unquestionably incorporated into the Open Records Act by operation of KRS 61.878(1)(l), a lengthy analysis of this question is unnecessary. Pursuant to KRS 367.250, disclosure of the information obtained pursuant to KRS 367.110 to 367.300 is expressly restricted. When the language of a statute is plain and unambiguous, the statute must be given effect as written. See Hoy v. Kentucky Industrial Revitalization Authority 907 S.W.2d 766, 769 (Ky. 1995). The denial of Mr. Dias's request for any records produced in response to subpoenas issued relative to CP's investigation of Brown Mackie is affirmed on the basis of KRS 367.250.
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:
Antonio F. DiasTodd E. LeathermanDana Nickles
Footnotes
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