Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Barren County Fiscal Court violated the Kentucky Open Records Act in denying Glasgow Daily Times Editor James Brown's May 9, 2012, request for a "copy of Mike Ober's full report, whether written or stored electronically, on his investigation into the Barren County Detention Center." 1 Mr. Brown correctly observed that in prior decisions the Attorney General has consistently recognized "that when a public agency contracts with a private entity or individual and the private entity creates or maintains documents on behalf of the public agency, . . . the documents are public records within the meaning of the Open Records Act . . . even if the public agency is not (or never was) in physical possession of the records." Acknowledging that Mr. Ober did not provide the Fiscal Court with a copy of the report upon request, Mr. Brown argued that in light of the contract between the Fiscal Court, a public agency, and Mr. Ober, as well as existing legal authority, the "full report" to which Mr. Ober referred during the Fiscal Court's May 1, 2012, meeting "should be made available as a public record. " Based upon the following, this office agrees.
The "nature and purpose of the document, not the place where it is kept," confirm that Mr. Ober's report can be properly characterized as a "public record" within the meaning of KRS 61.870(2). 00-ORD-207, p. 5. Although some portions of the report may well be protected under KRS 61.878(1)(a) and/or 61.878(1)(h), 2 as the Fiscal Court argued in the alternative, our ability to make a determination regarding the applicability of either statutory exception is hindered insofar as the Fiscal Court does not currently possess a copy of the report nor, consequently, is the Attorney General able to review the report in camera per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Given the unusual facts presented, the Fiscal Court is necessarily unable to satisfy its burden of proof under KRS 61.880(2)(c), and this office is unable to conclusively determine whether some or all of the content is protected from disclosure, but does find that the Fiscal Court's denial based on lack of possession is contrary to existing legal authority.
In a timely written response, Barren County Attorney Jeff Sharp and Barren County Judge Executive Davie Greer denied Mr. Brown's request, in relevant part, as follows:
The majority of the [Fiscal Court] voted on January [10, 2012,] to contract with Michael Ober a Kentucky Licensed Private Investigator, for Michael Ober to investigate reports of misconduct at the Barren County Detention Center. The majority of the [Fiscal Court] voted to pay Michael Ober his asking price of $ 3,500.00 to conduct said investigation and to report his findings to the [Fiscal Court]. A contract was entered [sic] on February 7, 2012, between Michael Ober and the [Fiscal Court] wherein Michael Ober agreed to provide a written report to the [Fiscal Court] accurately detailing the results of the investigation.
On May 1, 2012, Michael Ober appeared before the [Fiscal Court] at its regularly scheduled meeting and gave the [Fiscal Court] a summary written report detailing some alleged wrongdoings at the jail rather than his full report. Michael Ober explained that his full report contained names and statements of the 17 people he had interviewed, some of which were current employees and some of which were past employees. Michael Ober explained that he did not want to provide his full report to the [C]ourt because it would expose these people who had cooperated with him in his investigation. He indicated his desire to turn over his full report to the FBI since an FBI agent had been conducting a parallel investigation of wrongdoings at the jail. Michael Ober explained that he and [the] FBI agent had interviewed some of these people simultaneously. . . . The majority of the [Fiscal Court] then voted that Michael Ober turn his full report over to the FBI for the FBI to consider whether any criminal laws had been violated.
Michael Ober did not turn his full report over to the [Fiscal Court] and the [Fiscal Court] did not ask at that time that Michael Ober do so. . . . Neither the [Fiscal Court] nor the Barren County Judge Executive has a copy of Michael Ober's full report and the report has never been provided to them by Michael Ober. . . . Since receiving the open record's [sic] request the [Judge-Executive] has repeatedly called Michael Ober to try to determine whether Michael Ober turned the report over to the FBI. The [Judge-Executive] also intends to determine if Michael Ober retained either a physical or electronic copy of said full report. . . . If the report has been turned over to the FBI without a physical or electronic copy being retained by Michael Ober then it would be impossible for the [Fiscal Court] to produce the report.
If Michael Ober has either a [p]hysical or [e]lectronic copy of the report then it is possible that the [Fiscal Court] could get possession of the document. Michael Ober was acting as an Independent Contractor for the [Fiscal Court] in conducting this investigation and preparing the report and would be contractually obligated to provide the [Fiscal Court] with a copy of the report . If Michael Ober refuses to provide the [Fiscal Court] with the report then the only way the [Fiscal Court] could get the document would be by filing a lawsuit against Michael Ober for the full record. If such a scenario were to play out, this would place an unreasonable burden on the Fiscal Court under KRS 61.872 and the Fiscal Court would oppose the Open Records request on that basis.
(Emphasis added.)
Mr. Brown subsequently initiated this appeal, observing that Mr. Ober asked that "he be allowed to give the report in closed session," but his request was denied by the County Attorney because the subject matter did not fall within any of the exceptions codified at KRS 61.810(1). He further explained that Mr. Ober gave a summary of his report and then, "[a]t the conclusion of the meeting, the [F]iscal [C]ourt requested that Ober not give the written report" to it. When asked if the report would be subject to disclosure under the Open Records Act if Mr. Ober retained possession and gave it to the FBI, Mr. Brown explained, Mr. Sharp "said that it would not be an open record because it would not be in [the] possession of the [F]iscal [C]ourt. " Upon receiving notification of Mr. Brown's appeal from this office, Mr. Sharp reiterated his initial arguments verbatim, briefly elaborating upon the Fiscal Court's position regarding application of KRS 61.878(1)(a) and (h).
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office requested additional information to assist us in reaching a correct resolution of this matter. Specifically, the undersigned Assistant Attorney General asked Mr. Sharp to advise whether the Fiscal Court or the Judge Executive's Office had received a response to Judge Executive Greer's letter and telephone calls to Mr. Ober as of that date, June 15, "and, if not, whether efforts to reach Mr. Ober have continued." This office also requested that Mr. Sharp provide us with a copy of the contract between the Fiscal Court and Mr. Ober, "the name and contact information for the FBI office and/or field agent to whom the report was referred," and "a copy of any document memorializing this referral."
In a timely written response, Mr. Sharp advised that the Judge Executive "as of June 19, 2012, has not heard from Michael Ober." According to Mr. Sharp, he never signed for the letter that was sent to him by certified mail, a copy of which Mr. Sharp enclosed in addition to "a copy of the Certified Mail Receipt and a copy of the USPS Track and Confirm search that shows that the letter was sent to Michael Ober and was returned unclaimed." Because the Judge Executive has "received no response from mail and repeated telephone calls it is apparent that Michael Ober is avoiding the Barren County Judge Executive's attempts to contact him and that further efforts would be futile." Mr. Sharp also provided a copy of the contract as requested, which "obligates Mr. Ober to provide within 15 days of the conclusion of the investigation a written report accurately detailing the results of the investigation." In his view, Mr. Ober "did provide the [Fiscal Court] with a report detailing the results of the investigation," a copy of which Mr. Sharp also enclosed. When presenting the report to the Fiscal Court, Mr. Sharp continued, Mr. Ober "indicated that he had a full report that he was not going to give the Fiscal Court because it contained the names of those interviewed and he did not want to put those interviewed individuals in jeopardy since they had cooperated with him." The Fiscal Court maintained that Mr. Ober "could argue" in a lawsuit "that the summary report he provided to the [Fiscal Court] satisfied his duty under paragraph 7 of the contract," and the agency is therefore "not assured of a favorable Judgment if it were to sue" him; accordingly, the Fiscal Court reiterated its position that being forced to sue him for the full report would be unreasonably burdensome under KRS 61.872. 3
Also enclosed with Mr. Sharp's response was a copy of the minutes from the May 1, 2012, meeting of the Fiscal Court. "Near the end of those minutes, " he advised, "it shows the motion and vote by the [Fiscal Court] to forward the full report to the FBI. This was actually just a vote expressing the [Fiscal Court's] desire that Michael Ober turn said full report over to the FBI" because the Fiscal Court did not possess the report. The Fiscal Court "has had no contact with the FBI." Although Mr. Ober "indicated in his summary report that a FBI agent worked a parallel investigation to his own," Mr. Ober "never revealed the name of the FBI agent to the [Fiscal Court]." Mr. Ober "had already told the [Fiscal Court] that he intended to turn his full report over to the FBI," and the Fiscal Court "just took the extra step of voting to direct him to do so." Neither the Fiscal Court nor the Judge Executive knows "the name or contact information for the FBI office and/or field agent to whom Michael Ober referred his report." 4
When viewed in light of existing legal authority rejecting the argument upon which the Fiscal Court is relying, the Attorney General finds that Mr. Ober holds the report in dispute "at the instance of and as custodian [footnote omitted] on the [agency's] behalf, and that the [Fiscal Court's] position that it cannot compel the [private investigator] to disclose the [report] is without merit." 5 00-ORD-207, p. 5. Although the Fiscal Court apparently made good faith attempts to contact Mr. Ober, 6 and the question presented has not been addressed on these identical facts, prior decisions conclusively establish that "'[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. '" Id. (Citations omitted.)
The General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Chapter 171 of the Kentucky Revised Statutes, relating to management of public records, at KRS 61.8715. However, the Act only applies to "public record [s]," a term which is expansively defined at KRS 61.870(2). 7 Early on, this office clarified:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6) ).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277); 99-ORD-202. That being said, a public agency is not permitted to "somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. Further, "[a] contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs . . . [including] the risk of closer public scrutiny than might otherwise be the case." OAG 90-7, p. 6. Such a contractor "cannot reasonably expect to conduct the public's business in the shadows." 97-ORD-62, p. 3.
In 00-ORD-207, this office held that the City of Sheperdsville violated the Open Records Act in denying access to a settlement agreement "disclosing the amount of money paid by the city's liability insurer in settlement of the lawsuit, on the basis that records of the insurance carrier, and the defense attorney hired by the carrier, cannot be 'opened by a demand upon the city.'" Id., p. 1. The City argued that the requester could not "'impose upon the city a duty to direct its insurer [and its defense attorney] in the handling of the case" to produce a copy of the document requested "inasmuch as the city lacks contractual authority to do so, and has no legal obligation to do so under the Open Records Act. " Id., p. 4. In rejecting this position, the Attorney General noted that:
[n]umerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). For example, in 95-ORD-114 we held that a public hospital improperly denied access to a letter from the U.S. Department of Justice on the basis that the letter was not in the hospital's possession, but instead in the possession of the hospital's attorney, because the hospital failed to articulate any statutory basis for denial. Similarly, in 99-ORD-194 we held that a water district improperly postponed access to a merger agreement on the basis that the agreement was not in its possession, but instead in the possession of its attorney, holding that the fact that an agency's attorney may have possession of a public record does not negate the agency's duties under the Open Records Act. Finally, in 00-ORD-93 we held that a fire department's assertion that requested public records were not available for inspection because they were in the possession of its attorney did not constitute a sufficient legal basis for postponing the requester's access to the records.
00-ORD-207, p. 6. 8
The City in that case "suggest[ed] that it lack[ed] 'contractual authority' to compel its agent, the insurance carrier, to furnish it with a copy of the settlement agreement," but did "not cite a contract provision prohibiting it from immediately requesting a receiving a copy." Id., p. 7. Here, in contrast, the Fiscal Court has acknowledged that Mr. Ober "would be contractually obligated to provide" it with a copy of the full report, and thus did not, and could not cite any contract provision that would prohibit it from immediately requesting a copy, relying instead on the potential difficulties associated with enforcing the contract. See 05-ORD-015 (holding per 00-ORD-207 that City of Lancaster violated the Act in denying request for documents containing "the 'mutually agreed upon amount' referred to in the 'Settlement and Release Agreement'" already provided to requester merely because it did not actually possess the documents); 05-ORD-157 (holding per 00-ORD-207 and 05-ORD-015 that if responsive "damage claims" existed, lack of possession by the Bullitt County Fiscal Court/Judge Executive was not a legitimate basis for denying access).
Paragraph 2 of the "Private Investigation Contract" entered into by the Fiscal Court and Mr. Ober specifically provides that "in consideration of the agreements made" therein, such as payment of a "flat fee of $ 3,500.00 for the services he performs," Mr. Ober will "conduct investigative activities consisting of: Interviewing the Barren County Jailer and all other employees and officers at the Barren County Jail that will talk" to him, "for the purpose of: gaining information for a report for the [Fiscal Court] as to whether or not any possible sexual misconduct, illegal, or criminal [wrongdoing] is taking place at the Barren County Jail." Pursuant to paragraph 7, Mr. Ober "agrees to provide, within 15 days of conclusion of the investigation services contracted herein, a written report accurately detailing the results of the investigation." The record establishes that Mr. Ober presented a summary of his investigation during the Fiscal Court's May 1 meeting but also confirms that a "full report" existed in the possession of Mr. Ober as of that date. Because the minutes from that meeting only confirm that discussions were held, including, but not limited to "open records" following a unanimous vote to "Forward the full report to the FBI," this office has no way of knowing whether the Fiscal Court opted to avoid taking possession of the report in order to avoid possibly having to disclose a (redacted) version of it upon request, i.e. , improperly "secret[ed] it away on private premises" to avoid the requirements of the Act, like Mr. Brown asserted, though Mr. Sharp advised, without disputing Mr. Brown's account of the discussion, that the Fiscal Court "just took the extra step of voting to direct" Mr. Ober to forward the report to the FBI without obtaining a copy.
In any event, pursuant to 201 KAR 41:090, 9 Section 2(6)(b), provides that "[u]pon the request of a client in good standing [the Fiscal Court here], a licensee [Mr. Ober] shall submit a written report to that client or his designee." Subsection (b) further clarifies that "[a] written report shall include all relevant information obtained during the investigation." (Emphasis added.) When viewed in light of this regulation, paragraph 7 of the contract arguably requires Mr. Ober to provide the Fiscal Court with a copy of the full report upon request, and the Fiscal Court has conceded as much. While Mr. Ober " could argue" (emphasis added) that production of the summary report satisfied his contractual obligation, and the Fiscal Court cannot be "assured" of a favorable judgment if or when the agency must sue him, that does not alter the legal analysis regarding the accessibility of this "public record, " for which Mr. Ober was compensated with public funds, and which Mr. Ober now holds "at the instance of and as custodian [footnote omitted] on the [agency's] behalf." 00-ORD-207, p. 5. In light of the foregoing authorities and the Fiscal Court's admission that he is contractually obligated to produce a copy of the full report, its position that it cannot compel him to disclose the full report is unpersuasive. Id. See 00-ORD-46 (whether characterized as "review," "evaluation," or "notes," report prepared by consultant hired to evaluate university president was "public record" within the meaning of KRS 61.870(2) rather than "'property' of a private citizen"). The Fiscal Court violated the Open Records Act in denying Mr. Brown's request.
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:
James BrownDavie GreerJeff Sharp
Footnotes
Footnotes
1 Mr. Brown initially noted that "[a]ccording to a contract signed by the members of the Barren County Fiscal Court and private investigator Michael Ober on Feb. 7, 2012, the [C]ourt contracted with Ober 'for the purpose of gaining information for a report for the Barren County Fiscal Court . . .' (Private Investigation Contract, No. 2). ' ? Ober agrees to provide ? a written report accurately detailing the results of the investigation[.]' (Private Investigation Contract, No. 7)."
2 Even assuming that KRS 61.878(1)(a) could be properly invoked as the statutory basis for withholding the names and identifying information of witnesses interviewed, redaction of such information would address the concerns of Mr. Ober and/or the Fiscal Court and, more significantly, is required under KRS 61.878(4) as opposed to withholding the report in its entirety.
3 The Fiscal Court was presumably relying upon KRS 61.872 (6) , pursuant to which a public agency is permitted to deny a request "[i]f the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. . . . However, refusal under this section shall be sustained by clear and convincing evidence. " With regard to application of this exception generally, the analysis contained in, for example, 11-ORD-084 and 12-ORD-089, following Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), is controlling. "A bare allegation that a request is unreasonably burdensome does not satisfy the requirements of the statute." 06-ORD-177, p. 8 (citation omitted).
Before Chestnut , this office rarely found that a public agency had satisfied this intentionally high burden as required to successfully invoke KRS 61.872(6). Chestnut reinforced this longstanding position by recognizing that a public agency "faces a high proof threshold since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " Chestnut , at 664, and cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Id. at 665, citing KRS 61.8715. Even assuming that KRS 61.872(6) is not inapposite on the facts presented, given that a single request for a single document is at issue, the Fiscal Court cannot satisfy its burden of proof based on speculation, or the assumption that a lawsuit will be required, particularly when it arguably could easily have prevented the current dilemma by asking Mr. Ober to provide it with a copy of the full report detailing his investigation, as the contract requires, during its May 1 meeting.
4 Given our ultimate conclusion that discussion of KRS 61.878(1)(a) and (h) has been rendered unnecessary, this office will not unnecessarily lengthen the instant decision with a recitation of either the questions targeted at obtaining sufficient information to make a determination regarding their applicability here or the responses thereto given by the Fiscal Court.
5 For purposes of the Open Records Act, "custodian" is defined as "the official custodian or any authorized person having personal custody or control of the records [.]" KRS 61.870(6)(emphasis added).
6 Notwithstanding Mr. Ober's apparent refusal to communicate with the Judge Executive regarding this matter before the instant appeal was filed, the agency has apparently failed to make any further attempts to communicate, for instance, by and through its legal counsel, assuming instead that any such efforts would be futile; accordingly, the assumption that litigation would be required is premature. Further, the Fiscal Court could presumably locate the FBI office and/or field agent to whom the report was referred independently regardless of whether it chose to make this inquiry earlier.
7 KRS 61.870(2) defines "public record" as "all books, papers, maps, photographs, cards, types, discs, diskettes, recordings, software or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "
8 This office continued "to ascribe to the view that there may be rare occasions when records identified in an open records request are not public records because they reside in the custody of a private agent," citing 97-ORD-15 and 99-ORD-220 as examples. 00-ORD-207, pp. 6-7. However, the Attorney General further noted that he approached "this question with greater caution after the court's decision in City of Louisville v. Brian Cullinan , No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App.), which, "in accordance with Rules of Civil Procedure (CR) 76.28(4)(c)," this office acknowledged "cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent." Id., p. 7. See 07-ORD-002.
9 The Code of Ethics promulgated by the Kentucky Board of Licensure for Private Investigators per KRS 329A.025(2)(d).