Opinion
Opinion By: Andy Beshear,Attorney General;Mitchel T. Denham,Assistant Deputy Attorney General
Open Records Decision
BACKGROUND
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in denying Courier-Journal reporter Andrew Wolfson's November 2, 2015, request for copies of any subpoenas issued by an investigative grand jury. For the reasons that follow, we conclude that the University did not violate the Open Records Act.
Mr. Wolfson directed his November 2 request to records custodian Sherri Pawson, stating as follows:
Pursuant to the Kentucky Open Records Act, I am seeking a copy of any subpoenas issued by the Jefferson County grand jury to University of Louisville concerning an investigation of Katina Powell and Andre McGree [ sic ] and/or allegations in Powell's book, Breaking Cardinal Rules, that underage persons may have been provided for sexual acts or performances to university players or recruits.
The University's records custodian, Sherri Pawson, denied the request, citing both RCr 5.24 and KRS 61.878(1)(h), commonly referred to as "the law enforcement exemption. "
Mr. Wolfson appealed to this office on November 5, 2015. He argues that "Rule 5.24 does not prohibit a witness from disclosing that they have been subpoenaed to a grand jury, sharing a copy of their subpoena or discussing the nature of their testimony before a grand jury, " and that "[t]he Open Records exemption cited applies to records compiled by a law enforcement agency and the university is not a law enforcement agency. " In a response dated November 13, 2015, attorney Craig Dilger states that "the University is conducting its own internal investigation and is cooperating with outside law-enforcement authorities." Specifically, the University of Louisville Police Department (ULPD) is said to be investigating the matter. Mr. Dilger argues that if Mr. Wolfson "cannot access the same information from the Commonwealth's Attorney's Office or from the Jefferson County grand jury itself, then it should be equally inappropriate to circumvent those entities and seek that information instead from the University."
Mr. Dilger further states that if the University were forced to reveal "the types of documents or information sought" in a grand jury subpoena, "[t]he harm to any real investigation would be immeasurable. The disclosure of the types of information sought by a grand jury would likely cripple an investigation." In addition, Mr. Dilger argues that RCr 5.24 "provides that grand-jury proceedings themselves should be kept secret" and "[b]y handing over a possible grand-jury subpoena at the Complainant's request, Ms. Pawson would not only divulge the existence of a grand-jury proceeding, but also the scope of its proceedings."
ANALYSIS
61.878(1)(h) -- The Law Enforcement Exemption
We begin our analysis with the University's argument under KRS 61.878(1)(h), commonly referred to as the "law enforcement" exemption. To properly invoke this exemption, a public agency must meet a three part test: (1) the agency must assert that the records are those of a law enforcement or regulatory agency; (2) the records must be compiled in the process of detecting and investigating violations; and (3) the agency must articulate a concrete harm from the premature release of the records. See
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). For the reasons stated herein, this office believes the University has properly invoked this exemption.
The University may Invoke the Law Enforcement Exemption on Behalf of and at the Request of a Law Enforcement Agency in this Instance
The first question raised is whether or not the University can invoke this exemption. The Kentucky Supreme Court has held that public universities as a whole are not law enforcement agencies under the act.
University of Kentucky v. Courier-Journal & Louisville Times Company, 830 S.W.2d 373, 377 (Ky. 1992). However, the Jefferson County Commonwealth's Attorney's Office and the University of Louisville Police Department are law enforcement agencies. Both have standing to assert the exemption.
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 67 (Ky. 2013). In Lawson , the Kentucky Supreme Court found that the law enforcement exemption, in part, was "intended to shield prosecutors . . . from disclosures potentially harmful to their informants or their prosecutions." Id., at 67-68. This Office has previously held that a public agency which is not a law enforcement agency may invoke KRS 61.878(1)(h) on behalf of and at the request of a law enforcement agency. See 09-ORD-143; 02-ORD-215.
Pursuant to 40 KAR 1:030, Section 3, our office requested and received the disputed records for in camera review. The subpoenas themselves, prepared by the Commonwealth's Attorney, state in prominent locations: "Disclosure could impede an ongoing criminal investigation." Once again, on an attachment to one of the subpoenas, the Commonwealth's Attorney demands in bolded capital letters " DO NOT DISCLOSE PRODUCTION OF ANY RECRORDS PURSUANT TO THIS SUBPOENA. . . ." (Emphasis in original). The records clearly show that the Commonwealth's Attorney has requested the University not to disclose the subpoenas or records associated with them.
Thus, the Commonwealth's Attorney is conducting an ongoing grand jury investigation and has requested the records not to be disclosed. The University Police, a subdivision of the University itself, is also an investigating agency. Therefore, consistent with our prior opinions, we find that the University may invoke the "law enforcement" exemption on behalf and at the request of the Commonwealth's Attorney in this instance. 1
The Grand Jury Subpoenas in this Case are Exempt at this Time
It is undisputed that these grand jury subpoenas are documents compiled in the process of detecting a criminal act, as is the purpose of a grand jury. Therefore, the second prong of KRS 61.878(1)(h) is met.
We turn our attention to the third prong of the analysis -- whether or not the agency has shown harm. In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky addressed in detail the "law enforcement exception" under KRS 61.878(1)(h). Regarding the third prong of the analysis, the Court held that when a record pertains to a prospective law enforcement action, the agency must articulate "a concrete risk of harm" which is "something more than a hypothetical or speculative concern." Id., at 851.
We find the University's arguments regarding the harm in releasing the grand jury subpoenas at this time persuasive. In 14-ORD-139, we recognized that a criminal case in a pretrial stage is particularly susceptible to "unpredictable effects" from the premature public release of information. This early posture of the criminal case distinguished the facts in City of Fort Thomas , which had involved a denial of inspection of a police file at a post-conviction stage based on the mere possibility of a collateral challenge to the judgment. 406 S.W.3d at 847.
The very nature of grand jury proceedings themselves provides support for the position that there may be a concrete risk of harm in disclosing grand jury subpoenas. The grand jury is an institution of constitutional origin. KY. CONST. § 248;
Democratic Party of Kentucky v. Graham, 976 S.W.2d 423, 427 (Ky. 1998). It determines whether or not to indict an person at or near the inception of a criminal case. RCr 5.24 requires "all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret. " In
Greenwell v. Com., 317 S.W.2d 859, 861 (Ky. 1958), the former Court of Appeals stated:
From earliest times it has been the policy of the law in furtherance of justice to shield the proceedings of grand juries from public scrutiny . Secrecy is for the protection of the witnesses and the good names of innocent persons investigated but not indicted and is to inspire the grand jurors with a confidence of secrecy in the discharge of their duties.
(Emphasis added.) See also
Costello v. United States, 350 U.S. 359, 362, 76 S. Ct. 406, 408, 100 L. Ed. 397 (1956) ("[I]n this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor").
The arguments of the University, the nature of the grand jury proceedings themselves, and the specific request by the Commonwealth's Attorney show the risk of harm to the ongoing investigation is more than speculative in nature. At this pre-indictment stage in the proceedings the premature release of names of potential targets of the investigation, the names of potential witnesses, and the scope of the grand jury's inquiry, pose a concrete risk of harm to the grand jury's investigation. 2
CONCLUSION
We therefore find that the University may invoke 61.878(1)(h) in this case and has met its burden of proof to show a concrete risk of harm. For this reason, we need not reach the additional arguments put forth by the University.
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 proceedings.
Footnotes
Footnotes
1 This case is easily distinguished from University of Kentucky v. Courier-Journal & Louisville Times Company, supra. That case did not involve a law enforcement investigation. Id. at 377. Additionally, the internal investigation in that case was complete. Id. , at fn. 2.
2 The University should note that upon conclusion of the grand jury investigation it may not be able to rely on this exemption to withhold the subpoenas or any documents it may have produced in response to those subpoenas.