TO BE PUBLISHED 

93-ORD-91

August 5, 1993

IN RE: Mark Hebert/Transportation Cabinet

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of Mr. Mark Hebert's June 28, 1993, request to inspect and copy "all records, contracts and related materials pertaining to Tenney Pavoni Associates and TenEch Engineering's business with the state . . . ." Mr. Hebert is a reporter with WHAS-TV, and his request was made under the Kentucky Open Records Act.

On behalf of the Transportation Cabinet, Mr. Joseph K. Heady, Principal Assistant to the Custodian of Records, denied Mr. Hebert's request. Relying on KRS 61.878(1)(j) and Federal Rule of Criminal Procedure 6(e)(6), Mr. Heady explained that "subpoenas and relative [sic] materials given to grand juries are to be kept under seal and we could be subject to contempt for disclosing this information . . . ."

In his letter of appeal to this Office, Mr. Hebert questions whether records subpoenaed by a grand jury are "suddenly closed to the public for as long as the grand jury is in session." It is his position that the records remain open at all times under the Open Records Act. He urges this Office to issue a decision consistent with this view.

The issue presented in this open records appeal is whether the Transportation Cabinet properly relied on KRS 61.878(1)(j) and Federal Rule of Criminal Procedure 6(e)(6) in denying Mr. Hebert's request. For the reasons set forth below, we conclude that the Cabinet's reliance on the cited exception was misplaced, and that Mr. Heady should promptly make

arrangements for Mr. Hebert to inspect and copy the requested records.

KRS 61.878(1)(j) authorizes a public agency to withhold, except upon order of a court of competent jurisdiction, "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." Mr. Heady maintains that this provision operates in tandem with Federal Rule of Criminal Procedure 6(e)(6), hereinafter referred to as Rule 6(e)(6), to prohibit release of contracts, correspondence, and other materials involving Tenny Pavoni Associates and TenEch Engineering and the Transportation Cabinet. Rule 6(e)(6) relates to recording and disclosure of grand jury proceedings and provides:

In Mr. Heady's view, this rule extends to records in the Cabinet's custody which have also been subpoenaed by the U.S. Attorney.

We begin by noting that the federal rule cited by Mr. Heady narrowly applies to "records, orders and subpoenas relating to grand jury proceedings," and is aimed at preventing disclosure of "such documents as grand jury subpoenas and immunity orders." Rule 6(e)(6). These documents are typically filed in public files and may reveal details of grand jury investigations, particularly witnesses and targets. Comptroller General, More Guidance and Supervision Needed Over Federal Grand Jury Proceedings 10, 14 (Oct. 16, 1980). Rule 6(e)(6) does not relate generally to documents produced pursuant to a grand jury subpoena, but only to this narrow category of records.

Rule 6(e)(2) is a general rule of secrecy governing grand jury proceedings. That rule provides:

(Emphasis added.) Hence, grand jurors, interpreters, stenographers, operators of recording devices, typists who transcribe recorded testimony, attorneys for the government, and persons assisting attorneys for the government are bound to observe this rule of secrecy relative to "matters occurring before the grand jury."

This obligation of secrecy cannot, however, be imposed on any person except those specified in the Rule, and does not extend to witnesses. Wright, Federal Practice and Procedure: Criminal 2d 106 and cases cited at Note 16. "The seal of secrecy on witnesses would be an unnecessary hardship, and might lead to injustice if the witness were not permitted to make a disclosure to his lawyer, his employer, or an associate." Id. Only those persons identified in Rule 6(e)(1) are barred from disclosing matters occurring before the grand jury.

The Transportation Cabinet, having been served with a subpoena for records relating to Tenney Pavoni Associates and TenEch Engineering, does not fall within any of these categories, and is not bound by the obligation of secrecy imposed by Rule 6(e)(2). Nor can it invoke this Rule, or Rule 6(e)(6), as a protective shield. While under normal circumstances, a witness cannot be compelled to make disclosure, the Cabinet has an affirmative obligation to

release public records, independent of its involvement in the grand jury's investigation of Tenney Pavoni Associates and TenEch Engineering, under the Kentucky Open Records Act. Mr. Hebert did not request access to the grand jury subpoena or documents subpoenaed by the grand jury, but "all records, contracts and related materials pertaining to Tenney Pavoni Associates and TenEch Engineering's business with the state . . . ." Those public records are not suddenly rendered exempt by virtue of the fact that some or all of them have been subpoenaed by the grand jury.

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. Mr. Heady does not indicate that the Cabinet did not retain custody of copies of the records, or that the records are exempt from disclosure under another exception to the Open Records Act. His denial is instead premised entirely on the purported obligation of secrecy imposed on the Cabinet by operation of Rule 6(e). We are not persuaded by this argument and direct Mr. Heady and the Cabinet to make full and immediate disclosure of the requested records.

The Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/962

Distributed to:

Mr. Joseph K. Heady

Principal Assistant to the

Custodian of Records

Transportation Cabinet

Frankfort, KY 40622

Mr. Mark Hebert

WHAS-TV

P. O. Box 1100

Louisville, KY 40201