NOT TO BE PUBLISHED
96-ORD-37
February 15, 1996
In re: Kit Wagar/Finance and Administration Cabinet,
Division of Occupations and Professions
OPEN RECORDS DECISION
This appeal originated in a request to inspect public records submitted by Kit Wagar, a staff writer for the Lexington Herald-Leader, to the Finance and Administration Cabinet, Division of Occupations and Professions, on January 11, 1996. Mr. Wagar requested access to various records pertaining to four respiratory care therapists licensed by the Kentucky Board of Respiratory Care, and one nursing home administrator. On January 12, 1996, David L. Nicholas, Director of the Division of Occupations and Professions, responded to Mr. Wagar's request. Although Mr. Nicholas advised Mr. Wager that he could inspect the materials contained in the files of the named individuals, he indicated that one of the individuals whose records were requested, Robert Keesar, is the subject of a complaint currently pending before the Board of Respiratory Care. Reciting the language of KRS 61.878(1)(h), he concluded that because those records “are a part of a pending investigation and administrative adjudication,” and “the complaint relating to Mr. Keesar is neither completed nor has a decision to take no action been made by the board,” that portion of Mr. Wagar's request was denied.
The question presented in this appeal is whether the Division of Occupations and Professions violated provisions of the Open Records Act in partially denying Mr. Wagar's request. For the reasons set forth below, we conclude that the Division improperly denied that portion of his request relating to the complaint against Mr. Keesar.
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.
It is incumbent on a public agency which invokes KRS 61.878(1)(h) to authorize nondisclosure of public records to make the requisite showing under that provision, i.e., that the records were compiled by a law enforcement agency, or an agency involved in administrative adjudication, in the process of detecting and investigating statutory or regulatory violations, and that 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. As we noted in OAG 89-11, more than a “bare claim” that the agency will be harmed is required. [1] Inasmuch as KRS 61.880(2)(c) places the burden of proof in sustaining a denial on the public agency, and the Division has not met that burden with respect to the second of the two requirements for invoking KRS 61.878(1)(h), we conclude that it violated the provisions of the Open Records Act in partially denying Mr. Wagar's request. It is not, in our view, consistent with the principles of the Open Records Act, and in particular the principle that the exceptions are to be strictly construed, codified at KRS 61.871, to simply ignore the second part of the two part test found in KRS 61.878(1)(h).
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
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/28
Distributed to:
David L. Nicholas, Director
Board of Respiratory Care
P. O. Box 456
Frankfort KY 40602
Kit Wagar
The Lexington Herald-Leader
100 Midland Avenue
Lexington KY 40508
[1] In OAG 89-11, the agency asserted that the disputed record provided valuable evidentiary information relative to the movements and actions of the suspect, and that disclosure would be detrimental to the criminal action against him. We held that this did not constitute a sufficient description of the harm to the agency. The Division offers no explanation of the potential harm it will suffer by premature release of the information contained in records relating to Mr. Keesar.