NOT TO BE PUBLISHED

In re: Harold E. Dunaway/Hardin County Drug Task Force

This is an appeal from the Hardin County Drug Task Force's response to Harold E. Dunaway's July 14, 1997, request for a copy of the Task Force's policy and procedures manual, specifically, those portions of the manual dealing with the use of informants and the handling of evidence. On July 16, 1997, Hardin County Attorney Ken M. Howard denied Mr. Dunaway's request, advising him that that portion of the manual relating to use of informants is exempt pursuant to KRS 61.878(1)(h). Mr. Howard also stated that there is no manual dealing with the handling of evidence, and denied Mr. Dunaway's request on this basis. The question presented in this appeal is whether the Hardin County Drug Task Force properly relied on KRS 61.878(1)(h) in denying Mr. Dunaway's request. For the reasons which follow, we conclude that the Task Force's reliance on the cited exception was misplaced, and remand this matter to the Task Force for a response consistent with this office's decision in 95-ORD-121, a copy of which is enclosed.

In a follow-up letter to this office, Mr. Howard elaborated on the Task Force's position:

The Hardin County Drug Task Force is obviously a law enforcement agency. Internal policies and procedures relating to the recruitment, use, supervision and activities of informants are likewise obviously compiled for the purpose of detecting statutory or regulatory violations. The release of such internal policies and procedures or strategies on how to recruit, use, supervise and other activities of informants to the general public would adversely affect the Task Force's ability to use informants in prospective law enforcement action. The use of informants is a recognized and effective means of law enforcement activity. Making such "how to" documents to investigate criminal activity in the area of illegal drug activity available to the general public pursuant to open records requests would necessarily allow those members of the public who want to engage in such illegal activities the opportunity to learn law enforcement agencies investigative tactics in order to better hide and protect their illegal activities. Thus, KRS 61.878(1)(h) excepts these types of documents from the open records laws of this state. While the requested records may not address a specific case or individual and are generic as argued by Mr. Dunaway, their release to the general public would cause as much if not more harm to the Hardin County Drug Task Force in prospective law enforcement action. If the criminal element is allowed to access the strategies and the mechanisms to be utilized by law enforcement agencies in the future then the criminal element will know how to conform their illegal activity so as to best avoid detection.

While we are not persuaded that the manual qualifies for exclusion under KRS 61.878(1)(h), we agree with Mr. Howard that the Open Records Act was not intended to facilitate criminal conduct by compelling indiscriminate disclosure of law enforcement strategies and tactics to the public. Based on this office's reasoning in 95-ORD-121, we believe that the Task Force may withhold those portions of the manual relating to the use of informants, pursuant to KRS 61.872(6), if the information contained therein could be used to circumvent or violate the law thus necessitating an immediate revision of policy.

Consistent with the principle that "free and open examination of public records is in the public interest," KRS 61.878(1)(h), like each of the eleven other exceptions, must be "strictly construed" to afford the broadest possible public access. KRS 61.871. KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:

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.

In order to successfully raise this exception, a public agency must satisfy a three part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.

Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests have been met. 95-ORD-95; 96-ORD-155.

Clearly, the Hardin County Drug Task Force is a law enforcement agency. Thus, it satisfies the first part of the three part test. It cannot, however, be persuasively argued that the manual is a record "compiled in the process of detecting and investigating statutory or regulatory violations." This language has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations. This interpretation finds support in the next full sentence following this language which states, "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." This statement contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action. The Task Force's reliance on KRS 61.878(1)(h) to authorize nondisclosure of its policy and procedures manual suggests a liberal construction of the exception which is not warranted by its express terms. The Task Force having failed to satisfy the second part of the three part test found in KRS 61.878(1)(h), we conclude that the manual does not qualify for exclusion under KRS 61.878(1)(h).

In our view, 95-ORD-121 is controlling. There the Attorney General held that a jail could withhold its policy and procedures manual pursuant to KRS 61.872(6) "if release of [the manual] would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of [the manual], or information contained therein." 95-ORD-121, p. 8. A request for a policy and procedures manual, the office observed:

may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:

If the application places an unreasonable burden in producing public records . . . , the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination on a government vault or safe] nondisclosure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.

Moreover, it seems incongruous to attribute to the General Assembly an intention to require public agency revelation of internal manuals, or other public records, which would facilitate violation of the law and undermine its enforcement. In the instant appeal, disclosure of portions of the Bullitt Count Jail Policy and Procedures Manual affecting the security and safety of inmates, staff, and the public would significantly increase the risk of harm to these individuals and facilitate escape. This cannot have been the legislature's goal. Consistent with the rule of statutory construction articulated in Renaker v Commonwealth, Ky. App., 889 S.W.2d 819 (1994) and elsewhere, that statute should not be construed so as to bring about an absurd or unreasonable result, we conclude that the Open Records Law must be given a construction that is reasonable, and promotes the public's interest in security and administrative order. To that end, we find that the law, by and through the cited exemptions, prohibits disclosure of public records containing information the disclosure of which would significantly compromise that interest. Pursuant to KRS 61.878(4), requiring a public agency to separate excepted material from nonexcepted material and to make the latter available for examination, the Bullitt County Jail is directed to release to Mr. Houston those portions of its Policy and Procedures Manual which do not implicate security concerns, within the contemplation of KRS 197.025, and whose disclosure would not necessitate an immediate revision in policy and practice relative to the preservation of order in the facility.

95-ORD-121, p. 8, 9.

It is the opinion of this office that a policy and procedures manual dealing with the use of informants implicates many of the same concerns. Disclosure to the public "would necessarily allow those members of the public who want to engage in such illegal activities the opportunity to learn law enforcement agencies [sic] investigative tactics in order to better hide and protect their illegal activities." As a consequence, the Task Force would be forced to overhaul existing policies and procedures each time the records were requested and released. While Mr. Dunaway's purpose in requesting access to the manual is no doubt entirely legitimate, if he is permitted access to it so too must all other requesters, whatever their purpose might be. As we noted in 95-ORD-121, it cannot have been the legislature's intention to facilitate violation of the law and undermine its enforcement by requiring public agency revelation of internal manuals.

It is by this standard, and under this provision, that the Hardin County Drug Task Force's analysis of its duty to disclose portions of its policy and procedures manual should be undertaken. The Task Force may properly withhold those portions of the manual the disclosure of which would necessitate an immediate revision in policy and practice to insure personal and public security and avoid subversion of the law. KRS 61.872(6); KRS 61.878(4); and 95-ORD-121. We remand this matter to the Task Force to proceed under these provisions of the Open Records Act, and the open records decision construing them, rather than KRS 61.878(1)(h), in releasing the nonexempt portions of its manual to Mr. Dunaway, or withholding same in its entirety.

With respect to Mr. Dunaway's request for the manual or portion of the manual pertaining to the handling of evidence, we affirm the Hardin County Drug Task Force's denial on the basis that no such record exists. A public agency cannot permit access to a nonexistent record. OAG 83-111; OAG 87-54; OAG 91-112; 97-ORD-103. In general, it is not our duty to investigate in order to locate documents which do not exist or have disappeared. Thus, at page 5 of OAG 86-35, we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." Although there may be occasions when, under the mandate of KRS 61.8715, the Attorney General requests that an agency substantiate its denial by explaining why no record exists which satisfies a request, we do not believe that this appeal warrants additional inquiries. The Hardin County Drug Task Force's policy and procedures manual does not contain a section on the handling of evidence. The question presented in this appeal is factual, and not legal, in nature.

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 L. Bensenhaver

Assistant Attorney General

#772

Distributed to:

Harold E. Dunaway

Maples, Holbert, Gregory, Pearl & Dunaway

58 Public Square

Elizabethtown KY 42701

Ken M. Howard

Hardin County Attorney

P. O. Box 884

Elizabethtown KY 42702-0884