Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Kentucky Open Records Act in partially denying Courier-Journal staff writer Andrew Wolfson's June 13, 2017, request for records relating to the computer of former President James Ramsey. For the reasons that follow, we find that the University violated the Act.
Mr. Wolfson's request included the following item relevant to the records in dispute:
[A]ny records that reflect what role, if any, Ryan McDaniel played in working on President Ramsey's computer or ordering that work or supervising that work.
In a response also dated June 13, 2017, records custodian Sherri Pawson stated:
I am withholding one email string between Ryan McDaniel and Lee Smith as the document concerns an ongoing investigation. The Open Records Act expressly excludes from production information compiled in the process of detecting or investigating criminal, statutory or regulatory violations (KRS 61.878(h)) [ sic ].
Mr. Wolfson's appeal on behalf of the Courier-Journal was received on August 4, 2017. He argues that KRS 61.878(1)(h) is inapplicable because the University is not a law enforcement agency and "was not involved in administrative adjudication with respect to former President Ramsey's computer," and that no showing of harm to the agency was made as required by statute.
On August 8, 2017, the University responded to the appeal with a letter from attorney Craig C. Dilger, stating that the e-mail string was withheld because disclosure would cause harm by prematurely releasing information to be used in a prospective law enforcement action:
At present, the Attorney General's Department of Criminal Investigation [s] is conducting an ongoing investigation into the University of Louisville Foundation. The University, at the AG's request, is fully cooperating with this probe. Pursuant to this ongoing investigation, the AG's office has requested that the University not release materials compiled in the process of its investigation. ?
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? Because the Complainant cannot access the same information from the AG's office itself, it would be equally inappropriate to permit the Complainant to circumvent the investigating agency and instead seek the information directly from the University. Accordingly, the University may properly invoke the "law enforcement" exemption on behalf of and at the request of the Attorney General's Office.
The University alleges that the release of the e-mail, which it provided to law enforcement, "would compromise the investigation by revealing the nature or scope of the information sought in that investigation."
In a supplemental response dated September 12, 2017, the University explains that investigators from the Department of Criminal Investigations "have indicated their preference that the information provided by the University not be released during the course of their pending investigation." The University, citing 16-ORD-026 and 14-ORD-139, alludes to the fact that the investigation is at a pretrial stage and the effects of releasing information at this time could be "unpredictable."
This office has recognized that in appropriate cases a public agency cooperating with a law enforcement investigation may invoke KRS 61.878(1)(h) on behalf of the investigating agency. See, e.g. , 14-ORD-223; 09-ORD-143. KRS 61.878(1)(h), sometimes known as the "law enforcement" exception to the Open Records Act, permits nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added.)
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). The Court held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when a record pertains to a prospective law enforcement action,
the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
City of Fort Thomas, 406 S.W.3d at 851 (emphasis added). "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption. " Id. at 852 (overruling in part
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)).
Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing--by affidavit; by oral testimony; 1 or, if necessary to preserve the exemption, by in camera production--to justify the exemption. The agency should provide the requesting party and the court 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 the requester to dispute the claim and the court to assess it.
Id. The agency must identify specific records or categories of records "the particular nature of which renders them exempt. [T]he law enforcement exemption cannot be invoked without at least that minimum degree of factual justification. . .." Id. (emphasis added). Thus, a concrete, non-speculative risk of harm must be attributable to a particular record or records.
The University argues that release of the e-mail "would compromise the investigation by revealing the nature or scope of the information sought in that investigation." That statement, however, could be made about any piece of evidence in any criminal investigation. There is nothing in the record to indicate how the release of this particular piece of evidence, as distinct from any other type of evidence, would have a deleterious effect on the investigation. The argument is generic and could equally be applied to "anything from a law enforcement file"; that is exactly what the Supreme Court indicated was not sufficient under KRS 61.878(1)(h). City of Fort Thomas, supra, 406 S.W.3d at 852.
The mere fact that a criminal investigation is in an early stage, without more, is insufficient to show a "concrete risk of harm" resulting from the release of a particular record. In 16-ORD-026, cited by the University, we relied on the secret nature of grand jury proceedings to affirm the non-release of grand jury subpoenas. In the other appeal cited, 14-ORD-139, we relied on the argument that "the publicity connected with a murder trial and the possible identification of witnesses by their voices may have the potential to affect the willingness of witnesses to testify" in affirming the non-release of a 911 recording. By contrast, a generic claim that evidence would "reveal the nature or scope of the information" does not rise to the level of a showing of harm to the agency.
Moreover, by disclosing the very fact that e-mails concerning Ryan McDaniel's involvement with President Ramsey's computer were provided to law enforcement, the University has already, to that extent, "reveal[ed] the nature or scope of the information sought in that investigation." We have, nevertheless, examined the e-mail in camera and found nothing which, on its face, presents a concrete risk of harm to the ongoing investigation. We therefore conclude that the University has failed to meet its burden under KRS 61.880(2)(c) of showing that release of the e-mail "would harm the agency."
More fundamentally, however, we find that a key element of the "law enforcement" exception is lacking in this appeal. KRS 61.878(1)(h) requires that the record in question be "compiled in the process of detecting and investigating statutory or regulatory violations." The University argues that "any document issued or provided by the University to law-enforcement authority during an investigation assumes the character of" such a record. That is not the case.
Records "compiled in the process of detecting and investigating statutory or regulatory violations" consist of "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigative process." 09-ORD-012 (quoting OAG 89-11). They do not include records "which were 'segregated' in connection with an investigation [but were] not made uniquely in a specific detection and investigation process." Id. ; see also 05-ORD-078. Thus, we found that records of Medicaid payments made to Dr. Steve Henry, which were under examination by a federal grand jury, were not protected by KRS 61.878(1)(h) because "the record disclose[d] that the documents were generated in the normal course of business, and therefore independently of any investigative process." 01-ORD-67.
Like the records in 01-ORD-67, the e-mails concerning President Ramsey's computer were "generated in the normal course of business, " not "as an integral part of a specific detection and investigation process." Accordingly, KRS 61.878(1)(h) does not apply, and the records must be disclosed.
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 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.
Footnotes
Footnotes
1 Given the nature of the Attorney General's review process under KRS 61.880, oral testimony obviously would not be an option in an appeal pursuant to that section.