August 26, 1997

In re: Harold E. Dunaway/Justice Cabinet, Division of Grants Management

This is an appeal from the Justice Cabinet’s Division of Grants Management’s response to Harold E. Dunaway‘s July 11, 1997, request for copies of all grant applications submitted by the Hardin County Drug Task Force. In denying Mr. Dunaway’s request on the basis of KRS 61.878(1)(c)2.a., the Division’s director, Michael A. Fulkerson, explained:

The question presented in this appeal is whether the Division of Grants Management properly relied on KRS 61.878(1)(c)2.a. in denying Mr. Dunaway’s request. For the reasons which follow, we believe that the Division’s denial was only partially correct.

In 1994, the Open Records Act was amended. The Act now authorizes nondisclosure of:

Mr. Dunaway maintains that the requested records do not fall within this exception since "the names of investigators, the geographic target areas, types of targeted substances and plan of attack are all common knowledge. . . ." Through its deputy general counsel, Lucy B. Richardson, the Justice Cabinet responds, generally, that grant applications are excluded from the mandatory disclosure provisions of the Open Records Act because "entities applying for the same grant could access the other applications in order to . . . gain knowledge useful in competition for the grant." With specific reference to grants awarded by the Justice Cabinet’s Division of Grants Management, she observes:

The Cabinet asserts that KRS 61.878(1)(c)2.a. "makes no exceptions or requirements to produce redacted materials, obviously realizing the administrative nightmare had the legislature required such of the agency." (Emphasis in original.) It is with this position that we disagree.

KRS 61.878(4) provides:

Contrary to the view express by the Cabinet, this provision applies to all public records in which exempt and nonexempt information is commingled, including those qualifying for partial exemption under KRS 61.878(1)(c)2.a. See 95-ORD-107 at p. 6 (copy enclosed). The duty to separate excepted material and release nonexcepted material exists without regard to the presence or absence of express language imposing the duty in the specific exemption at issue. Thus, an application for a grant can, and very likely will, contain both excepted and nonexcepted material, and the public agency asserting the right to withhold the excepted material is obligated to separate it and make the nonexcepted material available for examination or justify its withholding with specificity.

In order to qualify for exclusion under KRS 61.878(1)(c)2.a., the requested records must be:

Although the grant application submitted by the Hardin County Drug Task Force satisfies requirements one and three, it is by no means clear that all of the information which the Division requires the Task Force to submit is "generally recognized as confidential or proprietary." Bearing in mind that the Division of Grants Management has the burden of proof in sustaining its denial, and KRS 61.878(1)(a)2.a., like the other exceptions to public inspection, must be strictly construed, we examine that information to determine if it also satisfies requirement two.

To facilitate our examination of the types of information which it requires applicants to submit, the Division furnished us with blank copies of the grant application, consisting of the grant award binder and the program/progress reporting forms. Although it is difficult to characterize the information contained in the application in a general way, we believe that it can be divided into three categories: 1) information required for purely administrative purposes, including the name of the recipient agency and identifying information, amount of funds received, and amount of funds expended, 2) information required for reporting purposes, including the names of undercover officers and informants as well as law enforcement strategies, and 3) information required for reporting purposes which is purely statistical in nature. The application also appears to require narrative responses to specific questions and program descriptions.

With respect to the first category of information, we find that the Division of Grants Management has not sustained its actions in denying Mr. Dunaway’s request. As noted, KRS 61.878(1)(c)2.a. requires a showing that the records in dispute contain information which is "generally recognized as confidential or proprietary." A bare allegation that the records withheld are confidential is not sufficient under the law. See, e.g., 92-ORD-1020; 93-ORD-43; 95-ORD-107; 96-ORD-135 (copies enclosed). Information appearing in a grant application which does nothing more than reveal the identity of the applicant, where the applicant’s identity is already known, cannot reasonably be characterized as confidential. The Division of Grants Management acknowledges that the Hardin County Drug Task Force has applied for a grant. We do not believe that this information, along with information of a descriptive character such as address, telephone number, and grant number, can properly be withheld under KRS 61.878(1)(c)2.a.

Nor do we believe that information pertaining to the amount of funds received and expended qualifies for exclusion under this provision. In general, "amounts paid from public coffers are . . . uniquely of public concern." OAG 90-30, p. 3. To this extent, the purposes for which KRS 61.878(1)(c)2.a. was enacted are not served by nondisclosure of these amounts. As we noted in 93-ORD-43, at page 4, "such records are of uniquely public interest insofar as they substantiate that federal [and state] funds will be put to proper use, and cannot be characterized as confidential or proprietary." Unless specific proof is adduced that records reflecting the receipt and expenditure of public funds are made confidential by statute, or are "generally recognized as confidential," we believe that the public has a right to expect accountability. The Division of Grants Management having failed to adduce such proof, we find that this information must be disclosed.

Nevertheless, we believe that the language of KRS 61.878(1)(c)2.a. is sufficiently broad to extend to information in the grant application that discloses "names of investigators; geographic target areas; types of targeted substances; and strategic plans of attack," and that the Division of Grants Management has met its statutory burden of proof in denying access to this information. Clearly, information which would, if disclosed, be detrimental to law enforcement efforts by imperiling the lives of undercover investigators and informants, and compromising the likelihood of successful enforcement action, is recognized as confidential. Although "secret police activity without some overriding justification is repugnant to the American system of government," OAG 80-144, p. 2, and records relating to law enforcement are generally open to inspection after enforcement action is taken or a decision not to act is made, KRS 61.878(1)(h), there can be little doubt that the nature of the targeted criminal drug activity, coupled with the need to insure the effectiveness of covert law enforcement operations, provide sufficient justification for maintaining the confidentiality of these records.

KRS 61.878(1)(c)2.a. does not extend, however, to purely "statistical information which is not descriptive of any readily identifiable person." KRS 61.878(2). The grant application with which this office was furnished contains several pages of statistical reporting requirements relating to types of offenses, race and ethnicity of persons arrested, types of assets seized or forfeited, amounts of drugs removed, and number of convictions. The Division of Grants Management fails to offer any explanation as to how this statistical data might properly be characterized as confidential. It does not identify specific undercover investigators or informants or strategic plans of attack. Absent proof that this data is generally recognized as confidential, we cannot affirm the Division’s denial of those portions of the grant application.

Finally, we note that the application also requires narrative responses to specific questions relating to project assessment, including program goals and objectives, activities, and performance indicators, as well as a comprehensive program description. While we have no way of knowing what these narratives may contain, we recognized that they almost certainly implicate the same confidentiality concerns implicated by those portions of the application identifying undercover investigators, informants, geographic target areas, types of targeted substances, and strategic plans of attack. To the extent that these portions of the application contain information which is also "generally recognized as confidential," they may properly be withheld. Again, the Division of Grants Management has met its burden of proof relative to nondisclosure of this information.

It is therefore the opinion of this office that the Justice Cabinet’s Division of Grants Management’s reliance on KRS 61.878(1)(c)2.a. was partially misplaced. That provision authorizes nondisclosure of records confidentially disclosed to an agency or required by an agency to be disclosed to it which are generally recognized as confidential or proprietary, and which are compiled and maintained in conjunction with an application for the administration of a loan or grant. The Division of Grants Management has not met its statutory burden of proof relative to the nondisclosure of those portions of the grant application which merely identify the applicant, indicate the amount of funds received or expended, and satisfy the statistical reporting requirement. If, in fact, all or any portion of this information is made confidential by federal mandate, the Division has failed to specifically identify the applicable federal law. In the absence of sufficient proof or legal authority, this office has no alternative but to find that the Division of Grants Management’s blanket denial of Mr. Dunaway’s request constituted a violation of the Open Records Act. Pursuant to KRS 61.878(4), the Division must separate the excepted material and make the nonexcepted material available for examination.

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

#783

Enclosures

Distributed to:

Harold E. Dunaway

Maples, Holbert, Gregory, Pearl & Dunaway

58 Public Square

Elizabethtown KY 42701

Michael A. Fulkerson, Director

Division of Grants Management

Justice Cabinet

403 Wapping Street

Frankfort KY 40601

Lucy B. Richardson

Deputy General Counsel

Justice Cabinet

403 Wapping Street

Frankfort KY 40601