Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of Attorney General (OAG) improperly denied release of emails pertaining to criminal litigation in which the OAG's Office of Special Prosecutions is acting as the prosecutor on behalf of the Commonwealth's Attorney. For the reasons set forth below, we find that the OAG did not violate the Open Records Act.
On October 28, 2016, Ralph Dunlop, Kentucky Center for Investigative Reporting (KYCIR), sent an Open Records request to the Office of the Attorney General in which he requested copies of any and all email correspondence from September 1, 2016, to the present, to or from the Attorney General, and/or the Chief Deputy Attorney General, and/or three Assistant Attorneys General within the Office of Special Prosecutions, pertaining to the role of two of those Assistant Attorneys General in litigating a criminal case in Daviess Circuit Court. He also requested any emails discussing or referring to concerns that the Daviess County Sheriff expressed about one of the Assistant Attorneys General. Mr. Dunlop also requested copies of any and all records regarding a telephone conversation between the Daviess County Sheriff and the Attorney General that allegedly occurred on October 3, 3016.
Mr. Travis Mayo, Assistant Attorney General, OAG, responded on October 31, 2016, advising Mr. Dunlop that the email records he had requested were exempt from public disclosure, and that the Office did not possess any records responsive to the request for records showing a telephone conversation between the Attorney General and the Daviess County Sheriff. In denying Mr. Dunlop's request for the emails, Mr. Mayo stated that the requested emails pertain to the case of Commonwealth v. Miles , 16-CR-0643, a criminal case currently pending in Daviess Circuit Court. Mr. Travis went on to explain that the Office of the Attorney General obtained jurisdiction to review the matter for prosecution pursuant to KRS 15.190 when the Commonwealth's Attorney for the 46th Judicial Circuit, requested a special prosecutor for that criminal case. Mr. Mayo cited KRS 61.878(1)(h) as the basis for exempting prosecutorial records from release and also cited Kentucky case law as supporting the position that litigation files maintained by the OAG as the prosecutor are exempt from release under the Open Records Act.
Mr. Mayo also claimed that specific rules in both the Rules of Criminal Procedure and Supreme Court Rules prohibit the OAG from making extrajudicial public statements regarding a pending criminal case, and that releasing the requested records would be a violation of those rules. Mr. Mayo stated that the requested records are exempt pursuant to the attorney/client privilege and the work product privilege.
Mr. Dunlop appealed the OAG's denial of his records request. He argued that the exemption in KRS 61.878(1)(h) was inapplicable to the requested email records because they regarded assignment or reassignment of special prosecutorial duties and so were "tangential" to, and not an integral part of, detection and investigation of statutory or regulatory violations. Mr. Dunlop also argued that KRS 61.878(1)(h) did not mention the Office of the Attorney General and so should not be applicable to the email records. He further opined that the Rules of Criminal Procedure, the Supreme Court Rules, and the attorney-client and work product privileges do not apply to the requested records. Mr. Mayo timely responded to Mr. Dunlop's appeal, expounding upon his original answer, and answering the counter-arguments set forth in Mr. Dunlop's appeal.
In determining the issue of whether the requested records are exempt from disclosure, we find that the statutory exemption provided for in KRS 61.878(1)(h) is dispositive of the matter and that we need not address Mr. Mayo's other arguments regarding the Rules of Criminal Procedure, the Supreme Court Rules, and the attorney-client and work product privileges.
Prosecutorial Records Exemption of KRS 61.878(1)(h)
KRS 61.878(1)(h) states, in pertinent part:
[R]ecords or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the [Open Records Act] and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
In 93-ORD-137 this office undertook an analysis of KRS 61.878(1)(h), noting that in amending the provision in 1992, the General Assembly "clearly intended to afford permanent protection to the records of the [county and] Commonwealth's attorney which relate to criminal investigations or criminal litigation." 93-ORD-137, p. 2. "In other words," the Attorney General concluded, "these records are forever exempt from public inspection under the Open Records Law. " Id., see also 96-ORD-77, p. 2 ("No matter what the stage or status of the proceedings, the [county and] and Commonwealth's attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection" ).
In two opinions from 2013 the Kentucky Supreme Court reaffirmed this position. Contrasting county and Commonwealth's attorneys' criminal litigation files from criminal files in the custody of police, in City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Supreme Court noted that "the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act . . . by singling them out" in KRS 61.878(1)(h). In the final footnote of the 25-page opinion, the Court "reiterate[d] that county attorney and Commonwealth's attorneys' files are treated differently after the 1992 amendment" to KRS 61.878(1)(h). Id. at 857. Four months later the Supreme Court revisited KRS 61.878(1)(h), recognizing that "The General Assembly enacted this portion of the statute in 1992, and by thus according blanket protection to the investigatory and prosecutorial files of county and Commonwealth's attorneys, relieved those agencies of the need to justify nondisclosure by a showing, otherwise required, that disclosure would harm the agency . . .." In sum, the Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . .." Lawson v. Office of the Attorney General, 415 S.W.3d 59, 69 (Ky. 2013). There is no question that the records compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation are exempted from the Open Records Act and remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
Application of "Prosecutor's Exemption" to the OAG : As explained by Mr. Mayo, the OAG's Office of Special Prosecutions was appointed to act as the prosecutor in the Miles case and is therefore acting within the jurisdiction of the Commonwealth's Attorney in reviewing that matter for prosecution and in the prosecution itself. Pursuant to KRS 15.210: "Whenever the Attorney General shall undertake any of the actions prescribed herein, he shall be authorized to exercise all powers and perform all duties in respect to such criminal actions or proceedings which the prosecuting attorney would otherwise perform or exercise..." As the Commonwealth's Attorney with jurisdiction in the Miles case would have the power to deny Mr. Dunlop's request for records pertaining to criminal litigation had he not recused himself as the prosecutor, by virtue of KRS 15.12 the Office of the Attorney General has that same power when acting as a special prosecutor.
Mr. Mayo cited Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 339-40 (Ky.2005), to demonstrate the applicability of KRS 61.878(1)(h) to the Office of the Attorney General. In Bowling , the Court held the trial court properly quashed subpoenas issued to representatives of the Fayette County Commonwealth's Attorney's Office and the Attorney General's Office, because under KRS 61.878(1)(h) the requester was "clearly not entitled to such records under the Open Records Act. .." Id. at 339. The Bowling Court cited to the earlier case of Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992), in stating that the 'Office of the Commonwealth of [sic] Attorney and the Office of Attorney General , together, represent the state's prosecutorial function in this case...." Bowling , at 339. (Emphasis added.)
As the Office of the Attorney General is acting in place of the Commonwealth's Attorney in the prosecution of the Miles case, the prosecutorial exemption of KRS 61.878(1)(h) applies to exclude those litigation files in toto from the Open Records Act.
"Tangential" Records Argument : Mr. Dunlop argues that the requested emails are tangential to the investigation and cites 08-ORD-013 in support of the argument that, since these emails were not "compiled in the process of detecting and investigating statutory or regulatory violations" they must be released. This argument fails to recognize that it is not the investigatory exemption of KRS 61.878(1)(h) being claimed by the OAG, but that it is the prosecutor's exemption discussed above that allows the OAG, as the special prosecutor in the Miles case, the discretion not to release the requested records. As stated in 93-ORD-137, regarding the prosecutorial exemption of KRS 61.878(1)(h): "[T]hese records are forever exempt from public inspection under the Open Records Law. " 93-ORD-137, p. 2.
City of Fort Thomas Does Not Require OAG to provide information about records : Mr. Dunlop further argues that City of Fort Thomas requires the OAG to provide him "with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit [him] to dispute the claim and the court to assess it" by "identify[ing] the particular kinds of records it holds and explain[ing] how the release of each assertedly exempt category would harm the agency in a prospective enforcement action. " This argument is in error. That portion of the decision in City of Fort Thomas that Mr. Dunlop refers to is relevant to the investigatory records exception, but a "prosecutor's litigation files are excluded in toto from the Act." Id. , at 853.
Downey Case : Mr. Dunlop's appeal contended that the unpublished decision of Courier-Journal and Louisville Times Company et al. v. Kent Downey and John Doe et al. , 1999-CA-002466-MR, (Ky.App. March 30, 2001) provided convincing reasoning to find that the Office of the Attorney General should be prohibited from using KRS 61.878(1)(h) to withhold records. The Downey case involved purely investigative files of the Attorney General rather than litigation files. See, Downey , at 13-14. The Kentucky Supreme Court has also acknowledged the difference between the authority of the Office of the Attorney General in a prosecutorial capacity and in its investigative function. See, Commonwealth v. Johnson, 423 S.W.3d 718, 723 (Ky. 2014). As the OAG is the prosecutor, in place of the Commonwealth's Attorney in the Miles case, the records it maintains pertaining to the criminal investigation or criminal litigation are exempted in toto from the Open Records Act.
Mr. Dunlop's original request for records showing a telephone conversation that allegedly occurred on October 3, 2016, between the Attorney General and the Daviess County Sheriff was answered by Mr. Mayo's explanation that the Office did not possess any records responsive to the request. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150. Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194; compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). Mr. Dunlop did not specifically contest this portion of the OAG's denial in his appeal and we cannot conclude that the OAG erred in its response to this portion of Mr. Dunlop's original request.
Accordingly, we find no error in the disposition of Mr. Dunlop's request by the Office of the Attorney General.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.