TO BE PUBLISHED
96-ORD-244
November 20, 1996
In re: Lexington Herald-Leader/Legislative Research Commission
Open Records Decision
This matter comes to the Attorney General on appeal from the Legislative Research Commission's denial of Lexington Herald-Leader reporter Jack Brammer's October 14, 1996, request for a copy of any search warrants or subpoenas “issued by the FBI or Kentucky Attorney General's Office or Kentucky State Police relating to Legislative Research Commission employee Kent Downey . . . [and] travels of state legislators.” On behalf of the Legislative Research Commission, Director Don Cetrulo responded to Mr. Brammer's request on October 16. Relying on KRS 61.878(1)(k), and “the attached opinion of counsel,” Mr. Cetrulo maintained that “[t]his appears to be a matter within the sole province of the U. S. District Court.” In the referenced opinion, LRC general counsel John Schaaf expressed the view that the warrant sought was “not an open record under KRS 61.870 to 61.884.” “Until a search warrant issued by a U. S. District Court is released by that Court,” he explained, “this agency is bound by the Court's action.”
In a supplemental response, Mr. Cetrulo reaffirmed LRC's commitment to “respect the judgment of the U. S. District Court for the Eastern District of Kentucky, the U. S. Department of Justice, and the Federal Bureau of Investigation.” Continuing, he observed:
The FBI requested the warrant in question, and the U. S. District Court issued it. Neither the FBI nor the issuing court has authorized release of the warrant, and the LRC will not take a contrary position.
In support, Mr. Cetrulo cited the federal Freedom of Information Act, 5 U.S.C. Sec. 552, the federal Privacy Act, 5 U.S.C. Sec. 552a, regulations of the U. S. Department of Justice concerning release of information about criminal and civil proceedings to the press, 28 C.F.R. Sec. 50.2, and OAGs 90-64 and 90-90. In closing, Mr. Cetrulo stated:
If the U. S. District Court and the Department of Justice have chosen not to disclose the contents of the search warrant or any affidavit or other information on which it was based, it may be reasonably concluded that the United States government has determined the release of the information would be in violation of the federal guidelines which apply to the disclosure of this type of information.
The United States government having “apparently made such a conclusion through non-disclosure,” Mr. Cetrulo refused to allow the Legislative Research Commission to be used “as a surrogate to accomplish what cannot be done under federal law and under the Kentucky Open Records Act.”
We are asked to determine if the Legislative Research Commission violated provisions of KRS 61.870 to 61.884 in denying the Lexington Herald-Leader's request. For the reasons set forth below, and upon the authorities cited, we conclude that LRC has failed to establish sufficient grounds for denying access to the search warrant at issue in this appeal.
In OAG 91-56, this office was asked to rule on the propriety of the Cabinet for Human Resources's reliance on KRS 61.878(1)(k), then codified as KRS 61.878(1)(i), and 5 U.S.C. Sec. 522(b)(7)(E), as well as 45 C.F.R. Sec. 5.63, to deny a requester access to an audit program in CHR's custody. There we held that because CHR is a state and not a federal agency, its records are subject to the Kentucky Open Records Act. At page 3 we reasoned:
[The Freedom of Information Act] has no force as to state records, only the records of federal agency. By invoking KRS 61.878(1)[(k)] and 5 U.S.C.A. 552(b), [CHR has] attempted to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other. Accordingly, [CHR's] reliance on 5 U.S.C.A. 552 (b)(7)(E) and 45 C.F.R. Sec. 5.63 is misplaced.
In support, we cited OAG 83-256, an early open records decision in which the Attorney General opined:
The Federal Freedom of Information Act, 5 U.S.C. Sec. 552, the Privacy Act, 5 U.S.C. Sec. 552(a) and 18 U.S.C. Sec. 1905 have no bearing on the question being dealt with in this opinion. Those federal statutes deal with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat those statutes as though they were state statutes. Those statutes make no pretense of controlling state records, either to make them open or to make them closed. Federal cases interpreting those statutes are of no help in this opinion.
OAG 83-256, p. 4; see also, OAG 80-519, p. 2 (holding that the Freedom of Information Act and the Privacy Act have “no force as to state records, only the records of federal agencies”).
Although it was issued by a federal court and executed by a federal agency, the search warrant at issue in this appeal is a document which is “in the possession of or retained by a public agency,” and is therefore a “public record” for purposes of Kentucky's Open Records Act. KRS 61.870(1) and (2) [1]. Nondisclosure of that record must be justified on the basis of one or more of the exemptions codified at KRS 61.878(1)(a) through (l). KRS 61.878(1)(k), upon which LRC relies, authorizes the nondisclosure of “records or information the disclosure of which is prohibited by federal law or regulation.” This provision has been interpreted to exempt from public inspection, for example, student records maintained by a state university under the Buckley Amendment, 20 U.S.C. Sec. 1232g [2], and job orders and related documents, identifying a specific employer, in the possession of the Kentucky Bureau for Manpower Services under 20 C.F.R. 602.18(a) [3]. We have never held that a public agency can rely on an exemption under the federal Freedom of Information Act, the federal Privacy Act, or a federal regulation applicable to the United States Department of Justice as the federal law or regulation prohibiting disclosure of public records under KRS 61.878(1)(k). It is therefore the opinion of this office that the Legislative Research Commission improperly relied on KRS 61.878(1)(k).
We do not believe that the open records opinions cited by the Legislative Research Commission are controlling. In OAG 90-90, the FBI records at issue contained the following disclaimer:
This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.
This office concluded that because the disputed records were the property of the FBI, and that agency had asked that the records not be disseminated, the state agency to which the open records request had been made, the Kentucky State Police, properly denied the requester access to those records. In the instant appeal, the FBI has taken no affirmative action to prevent disclosure of the search warrant. The cited opinion is therefore inapposite.
In OAG 90-64, this office affirmed the Lexington Fayette Urban County Government's reliance on KRS 61.878(1)(f), now (h), to authorize nondisclosure of video taped recording of an arrestee until the criminal matter was concluded or until a decision not to prosecute was made. Again, this opinion is distinguishable on its facts. The Legislative Research Commission, by its own admission, is not a law enforcement agency or agency involved in administrative adjudication. The Kentucky Supreme Court has recognized that KRS 61.878(1)(h) “applies only to” such agencies. University of Kentucky v Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 377 (1992). The only law enforcement agency involved in this matter is the FBI. Therefore KRS 61.878(1)(h) and opinions of this office supporting nondisclosure of investigative files of law enforcement agencies while their investigations are pending are not controlling.
In the absence of an exemption, or other legal authority, supporting nondisclosure, this office finds that the Legislative Research Commission violated the Open Records Act in denying the Lexington Herald-Leader access to the search warrant identified in its October 14 request. The Legislative Research Commission should promptly arrange for Mr. Brammer to inspect the record.
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 KRS61.880(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 L. Bensenhaver
Assistant Attorney General
1252
Distributed to:
Jack Brammer
Lexington Herald-Leader
612A Shelby Street
Frankfort KY 40601
Bill Estep
Lexington Herald-Leader
100 Midland Avenue
Lexington KY 40508
Don Cetrulo
Director
Legislative Research Commission
4th Floor
The Capitol
Frankfort KY 40601
[1] This office has learned that on November 12, 1996 U. S. Magistrate James E. Todd entered orders sealing search warrants and affidavits executed on the Legislative Research Commission, and directing the district clerk to maintain the documents under seal until further order of the court. These orders bind the district clerk, but are not binding on LRC, which retained copies of the disputed records. Such orders are binding on a public agency only when it is a party bound by the terms of the order. See e.g., OAG 80-353, OAG 89-22, OAG 91-121, OAG 92-119, 94-ORD-139.
[2] See OAG 80-471, OAG 85-140, and 95-ORD-55.
[3] See OAG 84-273.