NOT TO BE PUBLISHED

96-ORD-137

June 13, 1996

In re: James L. Thomerson/Mountain Area Drug Task Force

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Mountain Area Task Force's denial of Ms. Karen Samples's April 15, 1996 open records request for records relating to cases worked and arrests made by the Task Force.

Specifically, Ms. Samples, Reporter, Lexington Herald-Leader, asked for the following records:

- A list of all cases worked by the Mountain Area Drug Task Force since its inception, either by case number and county or by defendant's name and county.

- For those cases, a list of the charges against the defendants and the disposition of the cases, if your office keeps such information.

- Copies of any subpoenas you, your office or any other members of the MADTF have received from any federal grand juries.

By letter dated April 16, 1996, J. Frank Fryman, Director, Mountain Area Drug Task Force, denied Ms. Samples's request, stating:

First you requested a list of all cases worked by the Mountain Area Drug Task Force since its inception, either by case number or by defendant's name and county. By this, I assume that you mean all cases investigated in the past and presently being investigated. We simply cannot provide this information as to do so would jeopardize ongoing investigations, endanger both police officers and confidential informants and prematurely release information to be used during the prosecution of many of our cases. Thus, KRS 61.878(g) and KRS 17.150(2) specifically exempt our records from public inspection. As I am sure you are well aware, all of our cases involve undercover investigations, thus a disclosure of information derived through old cases could result in danger to our officers and informants in future cases. Many opinions of the Attorney General's office support this position.

To provide some assistance, I would point out that those cases previously prosecuted are on file with the Circuit and/or District Court Clerk of each county. Those records actually filed are open to public inspection.

Second, our office does not maintain records pertaining to disposition of our cases. Those records are maintained in the respective prosecutor's office and in the Circuit/District Clerk's Office. Thus, we are unable to provide the information requested in this regard. Likewise, many of our cases result in the Defendant providing confidential information with regards to other illegal activities. The disposition of such cases would clearly not be subject to public inspection.

Lastly, I am afraid that we will not be able to provide copies of federal grand jury subpoenas, if any exist, received by our agency or its members. Such subpoenas would be maintained by the appropriate Federal Agency or Prosecutor. Our agency does not maintain such records and therefore it is inappropriate to make such a request. Also, it is my belief that grand jury proceedings, if in fact there are any, are secretive and not subject to open records requests. We obviously would not want to interfere with a federal grand jury's investigation.

By letter April 19, 1996, Ms. Samples modified her request with regard to the records of “cases worked,” by stating:

We assume the MADTF is required to report periodically to the state on the number of arrests made. We merely wanted the names of those defendants. We are not asking for names of people currently under investigation - only those who have already been arrested or summoned to court through the work of the task force. We realize these records already are available at various courthouses. However, we know the MADTF has been very active and we didn't want to overlook any cases. Hence the open records request to you. We are certain that your list of defendants is public record and subject to the open records law.

Please be advised that we are not asking to review your entire file on these cases. Thus, the secrecy of confidential informants should not be an issue.

By letter dated April 24, 1996, Mr. Fryman again denied Ms. Samples's request by responding:

First, your most recent request is for the names of people who have already been arrested or summoned to court through the work of the Task Force. This request cannot be fulfilled and KRS 61.878(2)(g) protects the Task Force from any attempt at obtaining information if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known. As I indicated in my previous correspondence, many of our cases result in the defendant providing confidential information, thus we cannot provide a list of their names.

Secondly, only that information pertaining to a named suspect after prosecution or after a decision not to prosecute is open to public inspection. Many of the cases we have opened have not been prosecuted at this time. Thus we cannot and will not provide those names.

On behalf of Ms. Samples and her employer, The Lexington Herald-Leader Company, Mr. James L. Thomerson, an attorney with Stoll, Keenon & Park, appealed the denial of Ms. Samples request to this office. Mr. Thomerson argues that the Task Force has failed to meet its burden of proof to establish that the requested records fall within one of the Open Records Act's enumerated exemptions. First, he argues that the Task Force's reliance upon KRS 61.878(1)(h), to justify a blanket denial of all the requested records, is without merit because at least some of the cases are completed at this time. Secondly, he states that releasing the records sought will not “harm the agency.” He argues that while individual arrestees will be identified, and some of those persons may have later become informants, their status as an informant will not be revealed as the public will only be aware of their status as an arrestee, the charges brought against them, and the disposition of their case.

After receipt of the letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the Task Force provided this office with a response to the issues raised on appeal. On behalf of the Task Force, Mr. Fryman states that as he understands it, the open records law only requires that certain records be made available for inspection; the agency cannot be required to copy, list or provide case numbers. He further asserts that the Task Force does not maintain a “list” of court “case numbers” or records pertaining to the “final disposition” of its cases.

As to Ms. Samples's modified request for a list of defendants who had been “arrested or summoned to court” through the work of the Task Force, Mr. Fryman states that a list of this information does not fall within the guidelines of KRS 17.150(2) which exempts from inspection all records where prosecution is not completed or a determination to prosecute has not been made.

Mr. Fryman also states that the Task Force does not maintain a “list” of defendants who have been arrested and summoned to court through its work and that Ms. Samples has never requested records as to a “named suspect” but instead makes a blanket request for a list of names, case numbers and dispositions, separated pursuant to county of arrest.

For the reasons which follow, it is the conclusion of this office that the Mountain Area Drug Task Force's denial of Ms. Samples's requests was consistent in part and inconsistent in part with the Open Records Act.

Although the Task Force erroneously cited KRS 61.878(1)(g), that exemption authorizing the nondisclosure of “[t]est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again,” it is clear from Mr. Fryman's response that he intended to cite KRS 61.878(1)(h). That exception authorizes law enforcement agencies or agencies involved in administrative adjudications to withhold records:

[T]hat 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 action.

KRS 61.878(1)(h) further states that unless they are exempted by other provisions of the Open Records Act, public records exempted under this exemption “shall be open after enforcement action is completed or a decision is made to take no action[.]” Finally, the exemption specifically provides that it “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.” In view of this language, and the requirement that the public agency show 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,” we find that the Task Force failed to make the requisite showing relative to its blanket denial of the requested records by invocation of KRS 61.878(1)(h) and KRS 17.150(2).

KRS 61.878(1)(h) allows the Task Force to withhold its investigative files until the prosecution of the case is concluded or a decision is made not to prosecute. Law enforcement officials necessarily must have the discretion to determine if the release of its records would reveal the identity of its informants, would be premature or would pose a danger to individuals or otherwise be detrimental to prospective enforcement action. In his response, Mr. Fryman states that to provide the requested information would jeopardize ongoing investigations, endanger both police officers and confidential informants and prematurely release information to be used during the prosecution of many of its cases. This exception is clearly intended to authorize the nondisclosure of records generated by law enforcement agencies while pursuing and investigating crimes.

KRS 61.878(1)(l) and KRS 17.150(2) also permit the Task Force to withhold its investigative file while the case is ongoing. KRS 61.878(1)(l) exempts from public inspection “public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.” KRS 17.150(2) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute.

However, in the instant case, the Task Force issued a blanket denial of all the records requested by Ms. Samples. In his response, Mr. Fryman indicates that many of the cases the Task Force has opened have not yet been prosecuted. This implies that other cases have been prosecuted or a decision made not to prosecute. These records would be subject to disclosure unless to do so would reveal the identity of confidential informants, would be premature, or would pose a danger to individuals or otherwise be detrimental to prospective enforcement action. We conclude that the Task Force failed to establish that disclosure of completed investigations would subject individuals or the agency to the detriments contemplated by KRS 61.878(1)(h) and KRS 17.150(2) to justify a blanket denial of all requested records. Accordingly, records of completed cases which pose none of the dangers to individuals or agency prosecutions should be made available for Ms. Samples's inspection. If confidential information exists in the completed cases, the agency can redact that portion of the record and make the nonexempt portions available. KRS 61.878(4) provides:

If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.

The Task Force could not, in our view, reasonably assert that all of its closed case files are exempt. It would therefore be obligated to mask off those portions for which it successfully raised the exemption, and release the remainder. We do not mean to suggest that certain information which appears in the Task Force's investigative files could not properly be withheld under one or more of the exceptions to public inspection. By failing to articulate the basis for nondisclosure of those portions which could properly be excluded with any degree of specificity, and by failing to release the nonexempt portions per KRS 61.878(4), the Task Force violated the Open Records Act.

Ms. Samples also requested a list of all cases worked by the Task Force, either by case number and county or by defendant's name and county, a list of charges against the defendants and the disposition of the cases, and copies of federal grand jury subpoenas received by the Task Force or its members. Mr. Fryman responded that the agency did not maintain a list of defendants who had been arrested and summoned to court as a result of the Task Force's work, that it maintained no records of the disposition of its cases, and federal subpoenas, if any existed, would be maintained by the appropriate federal agency or prosecutor.

This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored. 93-ORD-7. Moreover, under the Open Records Act, a person does not have a right to require a list to be made from public records if the list does not already exist. 94-ORD-138. Thus, to the extent the Task Force did not maintain lists with the requested information, its response so stating was consistent with the Open Records Act.

In OAG 90-116, this office, in relation to a request to inspect any subpoenas served on the Department of Agriculture, Division of Animal Health, a law enforcement agency, by the Federal Bureau of Investigation, stated that the fact that the subpoena was served on the Department by the federal government did not change the fact that the subpoena was one of the documents compiled by the Department in its process of detecting and investigating statutory or regulatory violations. We held that premature release of the subpoena prior to the completion of the federal action could harm the agency's ability to cooperate with the federal government in the investigation and could harm the investigation itself. There we held that the agency properly withheld disclosure of the subpoenas while the investigation was ongoing. However, once the investigation was concluded, inspection should be allowed.

Thus, to the extent the Task Force has copies of any subpoenas in cases which are completed or not otherwise exempt under one or more of the exceptions to public inspection, they should be made available for inspection.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR:579

Distributed to:

James L. Thomerson

Stoll, Keenon & Park

Suite 1000

201 East Main Street

Lexington KY 40507-1380

Frank Fryman, Director

Mountain Area Drug Task Force

P. O. Box 1178

Martin KY 41649