NOT TO BE PUBLISHED
March 31, 1997
In re: Kimberly K. Greene/Cabinet for Public Protection and Regulation
Open Records Decision
This matter comes to the Attorney General on appeal from the denial by the Cabinet for Public Protection and Regulation of the open records request of Mr. Tom Loftus, Bureau Chief and a reporter for The Courier-Journal, for copies of certain records of the Department of Alcohol Beverage Control.
Specifically, by letter dated December 19, 1996, Mr. Loftus requested copies of:
. . . all reports (674 forms, they may be called) which show each and every instance when evidence (including alcohol and cash) was seized by agents/employees of the Department, and the itemization of what that evidence/cash was. I am also requesting copies of all evidence logs, bank accounts or other records which reflect the placement of seized evidence and/or cash into storage; and I request logs or other records reflecting the removal and disposition of any evidence/money from those places where seized evidence is stored and/or seized money deposited. I am asking for such records from the period beginning Jan. 1, 1995 through the present. - 1995 - til - 12-20-96. Finally, I ask for a current inventory of all of those evidence holding places and bank accounts where seized evidence and cash are deposited.
Initially, Mr. Mark McDaniel of the Cabinet for Public Protection and Regulation notified Mr. Loftus that it would take the Cabinet longer than three business days to compile the requested records and the records were expected to be provided in the first full week in January, 1997.
By letter dated January 17, 1997, Ms. Laura M. Douglas, Secretary for the Cabinet, denied Mr. Loftus's request, stating:
You are advised that pursuant to KRS 61.878(2)(g) [sic] the documents requested are not in the public domain and are, therefore, exempt from disclosure under the Kentucky Open Records law since these documents have been prepared by a law enforcement agency and are part of an ongoing law enforcement investigation. Please note that a copy of this letter and the exempt documents have been provided to the Attorney General's office.
On behalf of Mr. Loftus and The Courier-Journal, Ms. Kimberly K. Greene, Esq., appeals from the Cabinet's denial of the open records request. In her letter of appeal, Ms. Greene indicates that, in a subsequent telephone conversation with Mr. Loftus, Secretary Douglas confirmed that the investigation, referred to in her January 17, 1997 letter, was being conducted by the Kentucky Attorney General's Office and the Federal Bureau of Investigation. She also acknowledged that the Attorney General and the FBI had not prepared the public records requested but had, instead, obtained copies of the Department of Alcohol and Beverage Control's records as part of their investigation.
We are asked to determine whether the Cabinet's denial of Mr. Loftus's request was consistent with the Open Records Act. For the reasons which follow, we conclude that the Cabinet properly denied access to the requested records.
The Cabinet relies on KRS 61.878(1)(h), which 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[.]
The requested records are lists and inventories of evidence taken from persons suspected of violating the alcoholic beverage control laws. Although they were prepared in the ordinary course of business and were part of an internal Cabinet investigation, they have since been turned over to the Attorney General.
To determine the status of that investigation, the undersigned contacted Mr. Jim Huggins, Director, Public Corruption Unit of the Attorney General's Office, and was advised that the Cabinet had requested the Attorney General to take over its internal investigation and turned the records over to that agency. They are now part of the ongoing investigation of the Attorney General.
In OAG 90-116, this office, in holding that the Department of Agriculture properly denied a request to inspect a subpoena served on the Department by the federal government, stated:
Release of the subpoena before the completion of the federal action could harm the federal government's investigation and could harm the agency's ability to cooperate with the federal government in this investigation as well as in prospective investigations. Although allowing inspection of the subpoena would not be as intrusive and harmful as allowing inspection of the documents requested in the subpoena, such inspection still could harm the investigation by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government.
The Attorney General has advised that the premature release and inspection of the requested records could harm the ongoing investigation and prospective law enforcement action by divulging information to subjects yet to be interviewed and which may have a bearing on the outcome of the case. Because of this fact, the Attorney General requested the Cabinet not to release copies of the records. Accordingly, it is the conclusion of this office that the Cabinet, under authority of KRS 61.878(1)(h), properly denied access to the requested records.
Moreover, in OAG 83-39, we stated:
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)(h)] appl[y] and that you acted properly in denying inspection of the records.
Thus, the fact that the Cabinet is no longer conducting an internal investigation and has turned over its investigation and records to the Attorney General does not alter our conclusion. The investigation of the Attorney General is still open and KRS 61.878(1)(h) authorizes the Cabinet to withhold disclosure of its records transmitted to that investigative agency.
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
Kimberly K. Greene
Wyatt, Tarrant & Combs
Louisville KY 40202
Cabinet for Public Protection and Regulation
90 Airport Road
Frankfort KY 40601