Opinion
Opinion By: Jack Conway, Attorney General; Sean J. Riley, Director, Office of Civil and Environmental Law
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Licensed Professional Counselors violated the Open Records Act in denying Sid Porter's March 13, 2012, request for "a copy of all records, email, correspondence, etc., . . . [relating to his complaint against a counselor who allegedly threatened to send Mr. Porter's confidential information to Mr. Porter's employer]." Specifically, Mr. Porter requested copies of any email with [his] name in it . . . or the [counselor's/ service provider's] name . . . ." We affirm the Board's denial of Mr. Porter's request while the investigation and adjudication are proceeding.
In a response dated March 14, 2012, the Board invoked KRS 61.878(1)(h) but offered little in the way of an explanation of how that exception applies to the records withheld. Mr. Porter thereafter initiated this appeal. In supplemental correspondence directed to this office, the Board explained that Mr. Porter's complaint "is being processed in accordance with the Board's regulation governing complaints." Continuing, the Board observed:
[The complaint] has been sent to the licensee for response. Once the response is received, it is reviewed by the Board's Complaint Committee to determine if it should be dismissed or assigned to an investigator. The investigation is pending, and no final agency action has occurred. Releasing information before the end of the Board's investigation would harm the agency by revealing the identity of informants, witnesses, and documents not otherwise known, and by the premature release of information that may be used by the Board in a prospective administrative adjudication.
Although the Board's original response was procedurally deficient insofar as it did not contain "a brief explanation of how the exception [upon which it relied in denying Mr. Porter's request] applies to the record withheld, " 1 it corrected this deficiency on appeal by explaining how KRS 61.878(1)(h) applies to the requested investigative records while the investigation proceeds.
The Board accurately cites the relevant legal authority for the proposition that:
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.
08-ORD-021, p. 11 citing 95-ORD-95. The Board convincingly argues that the requested records meet the first and second parts of the three part test, and satisfies, albeit minimally, the third part of the test by demonstrating potential harm to its investigation and prospective adjudication from premature disclosure of the records. Accordingly, we affirm the denial of Mr. Porter's request.
KRS 61.878(1)(i) and (j) also provide clear and direct authority for denial of Mr. Porter's request. Those statutes authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In early case law, Kentucky's courts construed these exceptions to authorize nondisclosure of records relating to an investigation into a complaint while that investigation was proceeding, and, afterwards, if the records were not adopted as the basis of final agency action. See, e.g.,
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982). In
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 957 (Ky. App. 1983), the courts addressed the question of a request for access to investigative records relating to complaints against physicians licensed by the regulatory body, confirming that "those documents defined in subsections [(i) and (j)] which bec[o]me a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records" only after that action is taken. Accord,
University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (recognizing that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action");
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). An equally, if not more, convincing argument might have been advanced by the Board of Licensed Professional Counselors that the records identified in Mr. Porter's request currently enjoy protection since the investigation into his complaint is ongoing and the board has taken no final action.
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:
Sid PorterJeff BolerJames Grawe
Footnotes
Footnotes
1 KRS 61.880(1) establishes the requirements for agency response to an open records request. That statute provides:
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.)