NOT TO BE PUBLISHED
January 23, 1996
In re: Richard M. Sullivan/Office of the Attorney General
OPEN RECORDS DECISION
This appeal originated in the submission of an open records request by Ms. Laura J. Ensor, to the Office of the Attorney General to inspect records relating to certain investigations of the Kentucky Lottery Corporation by the Attorney General.
By letter dated July 26, 1995, Ms. Ensor, an attorney with Conliffe, Sandman & Sullivan, requested to inspect the following records:
1. All records pertaining to any investigation of the Kentucky Lottery Corporation, its officers or employees, its Board of Directors or members thereof;
2. All records of documents or information given to the Office of the Attorney General, or to any of its agents or employees, by George Stewart with regard to (a) the Kentucky Lottery Corporation, (b) its contracts, including but not limited to contracts with the American Woods and Interlott corporations, and (c) any of its officers, directors, and employees; and
3. All records of documents or other information given to the Office of the Attorney General, or to any of its agents or employees, by George Stewart with regard to facts or information disclosed by George Stewart to the Federal Bureau of Investigation or to any of its agents or employees.
By letter dated July 31, 1995, Mr. Ross Carter, Assistant Attorney General, denied Ms. Ensor's request stating that, pursuant to KRS 61.878(H) (sic), [KRS 61.878(1)(h)], the records requested pertaining to the Kentucky Lottery Corporation were not subject to open records because they were part of an open and ongoing criminal investigation.
On August 2, 1995, Mr. Richard M. Sullivan, also an attorney with Conliffe, Sandman & Sullivan, asked the Attorney General to reconsider his denial of the open records request, stating in relevant part:
George Stewart, who was the Executive Vice-President of the Kentucky Lottery Corporation and who was dismissed by the Kentucky Lottery Corporation has filed a lawsuit in which he alleges that he was fired because he was blowing the whistle on the Kentucky Lottery Corporation. Mr. Stewart has testified that he was cooperating with the Attorney General's office.
This matter has been set for trial in the early fall and our discovery deadline is drawing near. I would appreciate your looking into this matter to determine if in fact the information which we have previously requested cannot be released to us.
On August 8, 1995, Mr. Carter responded to Mr. Sullivan's reconsideration request, stating:
This letter responds to your August 2 letter asking us to reconsider whether you are entitled to certain documents under the Open Records Act.
The Office of the Attorney General is the agency that hears appeals under the Open Records Act. From your letter, I am not sure whether you intended to file a formal appeal or simply to request another look at your original request. I am construing your letter as the latter, and am replying to you in that vein.
KRS 61.878(1)(h) exempts from disclosure records of law enforcement agencies that were compiled in the process of detecting and investigating violations of the law if disclosure would harm the agency by revealing the identity of informants or by premature release of information. Information becomes public when the agency completes its enforcement action or decides to take no action.
This Office functions as a law enforcement agency. We have trained investigators on staff who conduct the necessary investigative work on a variety of cases. We currently have an active investigation relating to the Kentucky Lottery Corporation. The records that you seek were obtained in the process of conducting that investigation. We cannot release them without harming our investigation by revealing the identity of informants not otherwise known, or by prematurely releasing other information that will be used in a prospective law enforcement action.
When our investigation is concluded, the records will become public.
If I have misconstrued your letter and you intended to file a formal appeal, or if you wish to appeal the determination made in this letter, please let me know and I will assign your appeal to the appropriate staff.
On September 5, 1995, Mr. Sullivan filed a formal letter of appeal with this office in which he, in substance, states it appears that there is no active investigation of the Kentucky Lottery Corporation, and, thus, the Attorney General's response that the requested records are exempt from disclosure under KRS 61.878(1)(h) is without merit. Mr. Sullivan asserts that any records pertaining to an investigation that is no longer active should be made available pursuant to his open records request.
Under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, we requested additional information from the Attorney General regarding the status of the investigation and substantiation for the agency's denial of the open records request. Mr. Carter informed the undersigned that the investigation was open and ongoing at the time the open records requests were made. However, since the initiation of Mr. Sullivan's appeal and, as of this time, the investigation has been completed and closed.
The issue presented in this appeal is whether the Attorney General violated the Open Records Act in denying the open records requests for the investigative files pertaining to the Kentucky Lottery Corporation. This office has stated in numerous past opinions that a law enforcement agency's investigative file is not open for inspection while the investigation is ongoing. 95-ORD-15; 93-ORD-98.
Accordingly, it is the decision of this office that the Attorney General properly denied the request for the investigative files relating to the Kentucky Lottery Corporation on the basis that the investigation was still open and ongoing at the time of the Attorney General's response. The agency's denial is in accord and consistent with KRS 61.878(1)(h).
Since the investigation has been concluded and closed, the records requested are subject to public inspection. 95-ORD-16. Thus, Mr. Sullivan may resubmit his request to inspect the investigation records.
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 proceeding.
A. B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Assistant Attorney General
P.O. Box 2000
Frankfort, Kentucky 40602-2000
Richard M. Sullivan
Conliffe, Sandman, & Sullivan
621 West Main Street
Louisville, Kentucky 40202