NOT TO BE PUBLISHED
April 21, 1994
In Re: Lexington Herald-Leader/Harrison County
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by James L. Thomerson, Esq., on behalf of his client, the Lexington Herald-Leader newspaper, from the denial by the Harrison County School System of the newspaper's request for a tape recording of a meeting.
This office has not been provided with a copy of the letter of request filed with the Harrison County School System by either Mr. Thomerson or the Lexington Herald-Leader.
John M. Keith, Jr., Esq., on behalf of the Harrison County School System, in a letter dated March 11, 1994, denied the request for access to the tape recording. His letter said in part as follows:
The tape of the meeting requested was compiled in the process of investigating possible statutory or regulatory violation by an employee of the Harrison County Board of Education. At this time, the alleged incidents are also under investigation by the Kentucky Cabinet for Human Resources and the Kentucky State Police. Disclosure of the requested information would harm all those involved by prematurely releasing information to be used in prospective law enforcement action or administrative
adjudication. With all this in mind, we believe this request is excluded from Kentucky's Open Records Act, K.R.S. 61.870 et seq., by K.R.S. 61.878(1)(g), as well as sections (h) and (i).
In the letter of appeal to this office, received April 4, 1994, the Lexington Herald-Leader states that the tape in question is clearly a public record and the exceptions to public inspection set forth in KRS 61.878(1)(g), (h), and (i) are not applicable. The newspaper further maintains that the response of the public agency did not meet the requirements of KRS 61.880(1) as there was no explanation of how the exceptions cited apply to the record withheld. It is the Lexington Herald-Leader's position that the public agency has not met the burden of proof imposed upon it to justify the denial of the document requested.
It is the decision of the Attorney General that the Harrison County School System acted in accordance with the provisions of the Open Records Act in denying the newspaper's request for access to the tape recording. The portion of the statute which the school system relied upon in part is KRS 61.878(1)(g) which provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
* * *
(g) 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 not 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.
In 94-ORD-7, 93-ORD-104, OAG 90-67 and OAG 83-39, this office recognized that where there is concurrent jurisdiction between two agencies, and where they both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in an investigation of a matter relative to those records. At page three of OAG 83-39, this office said in part:
The fact that state authorities have decided not to prosecute does not mean that their investigative records must now be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. Since the premature release of the state's investigative file at this time might interfere with the prosecution by the federal authorities we believe that the exceptions provided by KRS 61.878(1)(f) [now codified as KRS 61.878(1)(g)] applies and that you acted properly in denying inspection of the records.
The school system withheld release of the tape recording pending the completion of an investigation involving the subject matter of that tape recording by the Cabinet for Human Resources and the Kentucky State Police. Regardless of
the status of the investigation at this time, it was an active and ongoing investigation at the time the newspaper's request for access to the tape recording was made to the school system. It is our decision that while the response of the school system could have been more thorough and specific it was at least minimally adequate, and the school system was justified in relying upon KRS 61.878(1)(g) to deny access to the tape recording when the subject matter of the tape recording was at that time being investigated by two state agencies including the Kentucky State Police.
The Lexington Herald-Leader may challenge this decision 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 shall be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
James L. Thomerson, Esq.
Stoll, Keenon & Park
201 East Main Street
Lexington, Kentucky 40507-1380
John M. Keith, Jr., Esq.
Keith, Keith & Kuster, P.S.C.
P.O. Box 247
Cynthiana, Kentucky 41031-0247