TO BE PUBLISHED
July 7, 1995
In re: The Courier-Journal and Louisville Times Company/ Kentucky Transportation Cabinet
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Joseph Gerth, Southern Kentucky Bureau Chief for the Courier-Journal, to the Kentucky Transportation Cabinet in March, 1995. Mr. Gerth requested access to documents relating to "roads [which] the Transportation Cabinet approved for construction, paving and/or maintenance under the Rural and Secondary Roads Program in Pulaski County during the 1991-92 and 1992-93 fiscal years." In addition, Mr. Gerth requested access to "all records in possession of the Transportation Cabinet in Frankfort and its District 8 Office in Somerset relating to the construction, paving and/or maintenance of New Pumphouse Road from Ky. 39 to Pumphouse Road (Ky. 3260) during the 1991-92 and 1992-93 fiscal years."
On behalf of the Transportation Cabinet, Jon D. Clark, Custodian of Records, responded to Mr. Gerth's request on March 9, 1995. Relying on KRS 61.878(1)(h), he explained that the Cabinet would be unable to provide any records relating to the state's Rural and Secondary Roads Program, and the construction, paving, and maintenance of New Pumphouse Road for the time frame identified in his request. Mr. Clark indicated that records located in the District 8 Office in Somerset, and the Department of Rural and Municipal Aid in Frankfort, have been subpoenaed, "and are no longer available for review at the present time." In a subsequent letter, Mr. Clark stated that "most of the requested records are not available because they have been subpoenaed and are not physically available." He reaffirmed the Cabinet's position that subpoenaed documents, "and other related documents," are unavailable for inspection per KRS 61.878(1)(h).
The question presented in this appeal is whether the Kentucky Transportation Cabinet properly relied on KRS 61.878(1)(h) in denying Mr. Gerth's open records request. For the reasons set forth below, and upon the authorities cited, we conclude that the Cabinet improperly denied the request.
KRS 61.878(1)(h) authorizes the 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 . . . [.] 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 order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
Moreover, the General Assembly mandates, at KRS 61.871, "that free and open examination of public records is in the public interest," and that the exceptions to disclosure contained in the Open Records Act, including KRS 61.878(1)(h), "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." Implementing this legislative mandate, in University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The court reasoned:
This exemption applies only to law enforce- ment agencies or agencies involved in ad- ministrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only "agency" in- volved in "administrative adjudication." Therefore, KRS 61.878(1)[(h)] would not apply.
Having failed to satisfy the first part of the three-part test found in KRS 61.878(1)(h), the court soundly rejected the University's claim.
We believe that the reasoning of the court's decision in University of Kentucky, supra, can be extended to the present appeal. The Transportation Cabinet is not a law enforcement agency. Nor is it an agency involved in an administrative adjudication. Our review of the Cabinet's denial discloses little more than that an investigation is underway, and that many of the records requested by Mr. Gerth have been subpoenaed. Like the court in University of Kentucky, supra, we are spared debate on the issue of whether the records satisfy either or both of the remaining parts of the three-part test, the Cabinet having failed to meet the threshold requirement of KRS 61.878(1)(h). See also, OAG 90-140; 94-ORD-81. We note in passing, however, that the Cabinet also failed to demonstrate that the records were compiled in the process of detecting and investigating statutory or regulatory violations, and that their release would harm the Cabinet by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.
As the Courier-Journal correctly notes, the Attorney General has recognized that public records are not suddenly rendered exempt by virtue of the fact that some or all of them have been subpoenaed. 93-ORD-91. At page 4 of that decision, we observed:
The records at issue in this appeal were created in the normal course of business for purposes not related to the prospect of a grand jury proceeding. The records have been subpoenaed for use in a grand jury investigation. This fact, standing alone, does not insulate the documents from the mandatory disclosure provisions of the Open Records Act.
In 93-ORD-91, copies of the subpoenaed records were maintained by the public agency. In the instant appeal, the Transportation Cabinet asserts that "most" of the records are not physically available because they have been subpoenaed. Although the Cabinet is not obligated to regain possession of the subpoenaed records to satisfy Mr. Gerth's request, it must make full and immediate disclosure of those records which remain in its possession. Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980).
In conclusion, denial of an open records request must be articulated in terms of the requirements of the statute. The agency thus has the burden of justifying the withholding of a record by reference to the appropriate exception, and by briefly explaining how it applies to the record withheld. KRS 61.880(1); KRS 61.880(2)(c); KRS 61.880(2). Denial of a request for public records under KRS 61.878(1)(h) must be sustained by proof that the public agency which received the request is a law enforcement agency or an agency involved in administrative adjudication, that the disputed records were compiled in the process of detecting and investigating statutory or regulatory violations, and that the disclosure of the records 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. See also, 92-ORD-1613; 94-ORD-35; 94-ORD-53. Because the Transportation Cabinet failed to meet its burden of proof, it must disclose those records, still in its custody, which Mr. Gerth requested.
The Kentucky Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Jon D. Clark, Commissioner
Department of Administrative Services
and Custodian of Records
Kentucky Transportation Cabinet
Frankfort, Kentucky 40622
Hon. Jon L. Fleischaker
Wyatt, Tarrant & Combs
Louisville, KY 40202