TO BE PUBLISHED 

94-ORD-81

June 28, 1994

IN RE: Lexington Herald-Leader Company/Office of the Auditor

of Public Accounts

OPEN RECORDS DECISION

This matter originated in a request for public records submitted by Mr. Jack Brammer, staff reporter for The Lexington Herald-Leader, to the Office of the Auditor of Public Accounts. That office has recently engaged in a review of state procurement of architectural and engineering services. On March 22, 1994, Mr. Brammer requested access to all subpoenas issued by the Auditor's office in 1994 to architectural and engineering firms, and to the Transportation Cabinet, relating to the awarding of contracts to those firms. In addition, Mr. Brammer requested all correspondence from the Auditor's office to the Transportation Cabinet, Finance Cabinet, other state agencies, and architectural and engineering firms, relating to the awarding of contracts. On the same day, the Auditor executed a subpoena on the Department of Personnel, commanding production of the personnel records of several named employees of the Transportation Cabinet, the Finance and Administration Cabinet, and other state agencies, for the period of July 1, 1992, through February 28, 1994. The second page of the subpoena contained the names of the state employees whose records were sought. Earlier in the month, the Auditor issued subpoenas to the Transportation Cabinet and fifteen architectural and engineering firms for records relating to gifts and entertainment expenses made on behalf of these employees.

In response to Mr. Brammer's request, the Auditor's Office released copies of the subpoenas executed on the Transportation Cabinet and the various architectural and engineering firms. Although he released the first page of the subpoena issued to the Department of Personnel, the Auditor withheld the second page which contained the names of state employees. It is the nondisclosure of this record which is contested by The Lexington Herald-Leader. The Auditor likened the second page of the subpoena to audit work papers which are excepted from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(h) and (i). Because these records contain "preliminary drafts and notes," the Auditor argued that they do not constitute final agency action.

On behalf of his client, The Lexington Herald-Leader, Mr. Jim Thomerson appealed the Auditor's partial denial of Mr. Brammer's request to this Office. Mr. Thomerson maintains that because "[t]here is absolutely nothing 'preliminary' about a list of names attached to a subpoena," the Auditor's reliance on KRS 61.878(1)(h) and (i) is misplaced. He also refutes the argument, not advanced in the Auditor's initial denial but later raised by General Counsel, Mr. David MacKnight, that the second page of the subpoena is exempt pursuant to KRS 61.878(1)(g), relating to "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication." Mr. Thomerson notes that this exemption is inapplicable to the Auditor's office since it is neither a law enforcement agency nor an agency involved in administrative adjudication.

In a letter dated April 25, the Auditor's office, through Mr. MacKnight, responded to these arguments. Mr. MacKnight reaffirms the Auditor's view that KRS 61.878(1)(h) and (i) authorizes the withholding of the second page of the

subpoena. He notes that the Auditor's review of specific state employees and their receipt of gift and entertainment expenses "is still in progress," and that information relating to these employees is still preliminary. Continuing, he observes:

For these reasons, Mr. MacKnight maintains that the second page of the subpoena "was and is a preliminary list."

Moreover, Mr. MacKnight asserts, since Mr. Brammer's request was made and denied, the Auditor's office has been enlisted by the Executive Branch Ethics Commission, pursuant to KRS 11A.070, to assist in the Commission's review of this matter. KRS 11A.080(2) mandates that records relating to the Commission's preliminary investigations remain confidential until a final determination is made. Because the Auditor's office is assisting the Commission, it is, in Mr. MacKnight's view, bound by KRS 11A.080(2), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(k).

Finally, the Auditor's office argues that the list of state employees whose records were subpoenaed is exempt pursuant to KRS 61.878(1)(g) inasmuch as the Attorney General will be impeded in his investigation when the matter is referred to this Office by the Executive Branch Ethics Commission. Accordingly, Mr. MacKnight maintains that release of the list of state employees "would be premature and could harm the Attorney General's ability to assist the Executive Branch Ethics Commission with its review." He asks that we affirm the Auditor's partial denial of Mr. Brammer's request.

We are asked to determine whether the Office of the Auditor of Public Accounts properly relied on KRS 61.878(1)(g), (h), (i), and (k) in denying The Lexington Herald-Leader access to the second page of the subpoena executed on the Department of Personnel relative to the Auditor's review of state procurement practices. For the reasons set forth below, we conclude that the Auditor improperly relied on each of these exceptions, and must release the list of state employees.

I. KRS 61.878(1)(h) and (i)

The Auditor maintains that because the list of state employees whose records were subpoenaed from the Department of

Personnel does not represent a complete list, and because the information obtained about these employees is unverified, it is "preliminary" within the meaning of KRS 61.878(1)(h) and (i). As noted, these exceptions exempt from disclosure "[p]reliminary drafts, notes, [and] correspondence with private individuals . . . ," as well as "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In our view, the Auditor's position represents a construction of these exemptions which is not warranted by their express terms, or by the mandate of the Open Records Act. A subpoena is final upon execution. It cannot be characterized as a preliminary draft, note, or correspondence, nor can it be characterized as a preliminary memorandum in which opinions are expressed. The Auditor's office, in a laudable attempt to comply with the spirit of the Open Records Law, acknowledged this fact by releasing the first page of the subpoena. It cannot now persuasively argue that the second page is somehow different. While it is certainly true that a draft version of the subpoena could be withheld under KRS 61.878(1)(h), or that internal investigative memoranda relating to the individuals named in the subpoena could be withheld under KRS 61.878(1)(i), the record at issue in this appeal does not fit within either of these exceptions.

II. KRS 61.878(1)(k)

The Auditor next asserts that since Mr. Brammer made his request, and the Auditor's office denied it, the Auditor's services have been enlisted by the Executive Branch Ethics Commission pursuant to KRS 11A.070. It is the Auditor's position that KRS 11A.080(2) precludes the release of the second page of the subpoena executed on March 22. That statute, which would operate in tandem with KRS 61.878(1)(k) were it applicable, provides:

Arguably, an agency acting in cooperation with the Executive Branch Ethics Commission in an investigation would be bound by this provision. Nonetheless, at the time of Mr. Brammer's request, the Auditor's office was acting independently, and was therefore not so bound. The Auditor's position begs the question: If, in fact, KRS 11A.080(2) prohibits the release of the second page of the subpoena, why would it not also prohibit the release of the first page, which the Auditor has released. We are not persuaded by this argument. It is our decision that KRS 11A.080(2) does not authorize the nonrelease of the disputed record.

III. KRS 61.878(1)(g)

In a final attempt to justify its refusal to release the second page of its subpoena, the Auditor's office argues that premature release of the information contained on it "could harm the Attorney General's ability to assist the Executive Branch Ethics Commission with its review." Hence, in the Auditor's view, KRS 61.878(1)(g) authorizes the nondisclosure of the record. The Auditor acknowledges that his office is not a law enforcement agency within the meaning of KRS 61.878(1)(g). Nor is it an agency involved in administrative adjudication as contemplated by the Act. He

must, therefore, fall back on the argument that his records are somehow "bootstrapped" into the records compiled by the Office of the Attorney General in a future investigation. While the Auditor's concerns may be legitimate, we believe that the anticipated harm is too speculative to warrant invocation of this exception. Disclosure of the names of state employees against whom allegations have been made is not likely to harm the Attorney General's Office since many of these individuals have already learned that their names were reported by the architectural and engineering firms as the recipients of gifts and entertainment expenses. Accordingly, we must reject this argument as well.

The Office of the Auditor of Public Accounts is directed to release a copy of the second page of its March 22, 1994, subpoena executed on the Department of Personnel to The Lexington Herald-Leader and Mr. Brammer.

The Auditor's Office may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Hon. David H. MacKnight

General Counsel

Auditor of Public Accounts

144 Capitol Annex

Frankfort, KY 40601

Hon. James L. Thomerson

Stoll, Keenon & Park

201 East Main Street

Suite 1000

Lexington, KY 40507-1380

Mr. Jack Brammer

Lexington Herald-Leader

100 Midland Avenue

Lexington, KY 40508-1999