April 25, 2002
In re: The Advocate Messenger/Stanford-Lincoln County
Industrial Development Authority
Open Records Decision
The question presented in this appeal is whether the Stanford-Lincoln County Industrial Development Authority violated the Open Records Act in partially denying Advocate Messenger reporter Katherine Belcher’s request for operational records maintained by the Authority, including minutes of meetings, financial reports, and personnel records. For the reasons that follow, we affirm the Authority’s partial denial of Ms. Belcher’s request.
In an undated letter1 addressed to Authority Chairman Billy Fox, and received by the Authority on March 26, 2002, Ms. Belcher requested access to:
Minutes from the last six meetings – both special and regular.
Financial reports dating back to July 2001.
A list of all employees, their salaries, and personnel records.
A record of any disciplinary action taken against anyone employed as of January, 2002.
In a faxed response dated March 28, 2002, Mr. Fox denied Ms. Belcher access to the minutes of the Authority’s last six meetings and financial reports, explaining:
These records are not available to the Stanford-Lincoln County Industrial Development authority, and therefore, the Authority cannot comply with this request. These records were turned over to the Kentucky State Police which is conducting an investigation for possible criminal charges. These records are in the possession of the Kentucky State Police and probably will be until the investigation is completed.
In response to Ms. Belcher’s request for personnel records, Mr. Fox advised:
The Stanford-Lincoln County Industrial Development Authority does not have any employees at this time. Elizabeth Hill was an employee of the . . . Authority. However, she has terminated her employment with the Authority. She earned $8.50 per hour and usually worked 30 hours per week, prior to the termination. Any personnel records were turned over to the Kentucky State Police which is conducting an investigation for possible criminal charges. These records are in the possession of the Kentucky State Police and probably will be until the investigation is completed.
Further, Mr. Fox notified Ms. Belcher that “[n]o disciplinary action has been taken by the Industrial Authority against anyone employed as of January 2002.” In closing, Mr. Fox stated that the records that had been turned over to KSP would otherwise qualify for exclusion from public inspection based on KRS 61.878(1)(a) and (h),2 noting, with reference to the latter exception, that “said records are in the possession of a law enforcement agency which is presently investigating statutory or regulatory violations and disclosure of the information would harm the agency by premature release of information to be used in a prospective law enforcement action.”
On April 19, 2002, the undersigned Assistant Attorney General contacted Lt. Mark Merriman and Trooper Jon Allen at KSP Post 7 to ascertain the status of the investigation and to confirm that the statements made by Mr. Fox are accurate. Trooper Allen advised that the investigation is ongoing and that the records the Authority turned over to KSP, many of which are the original and only copies of the records, are integral to KSP’s investigation. He confirmed that he instructed Mr. Fox not to release any retrievable financial records inasmuch as premature disclosure would compromise KSP’s investigation. Further, he confirmed that the minutes of the Authority’s meetings were stored in a computer3 turned over to KSP and copies do not exist within the agency. Both Trooper Allen and Lt. Merriman expressed grave concern about release of the records identified in Ms. Belcher’s request at this time, concluding that the records contain information that will be used in a prospective law enforcement action and that disclosure will indeed compromise that action. This being the case, we find that the Authority could not have honored Ms. Belcher’s request when it was submitted since the records to which she sought access were not in its custody, and that the Authority should not have honored her request by attempting to retrieve or duplicate the records in view of KSP’s instructions and the likelihood that the investigation would be impeded by premature disclosure of the information contained therein.
In 97-ORD-52 this office upheld the Public Protection and Regulation Cabinet’s denial of a request for records relating to an internal investigation of violations of alcohol beverage control laws conducted by the Cabinet and subsequently turned over to the Attorney General’s Public Corruption Unit. We affirmed after establishing that the Public Corruption Unit’s investigation was ongoing and that the Unit had determined that “premature release and inspection of the requested records could harm the ongoing investigation and prospective law enforcement action by divulging information to subjects yet to be interviewed and which may have a bearing on the outcome of the case.” 97-ORD-52, p. 3. Similarly, in 02-ORD-4, we affirmed the Department for Medicaid Services’ denial of a request for records relating to the investigation of a physician on the basis of KRS 61.878(1)(h). The Department explained that the Attorney General’s Medicaid Fraud and Abuse Control Unit was conducting an investigation into the physician’s activities, and that:
All written information previously in the possession of Cabinet investigators was turned over to the OAG, at their request. The OAG informs us that it considers this information to be part of their active investigation.
02-OMD-4, p. 3. We confirmed these statements through the Prosecutions Branch Manager and upheld the Department’s denial of the open records request. We believe that these decisions, and the authorities cited therein, are dispositive of this appeal. Compare 00-ORD-196 (holding that Jefferson County Corrections Department improperly denied request for videotape of incident that occurred in the basement of the Hall of Justice on the basis of KRS 61.878(1)(h) because no evidence existed that FBI asked Corrections to withhold the videotape pending resolution of its investigation, and representatives of FBI advised this office that their investigation would not be compromised by release of a copy of the tape).
We believe that 01-ORD-67, upon which the Advocate Messenger relies, is clearly distinguishable from the appeal before us. There, the Cabinet for Health Services denied a request for records reflecting Medicaid payments made to a physician on the basis of KRS 61.878(1)(h). The Attorney General concluded that the denial violated the Open Records Act reasoning:
The Cabinet for Health Services’ reliance on KRS 61.878(1)(h) fails under each part of the three-part test [found in that exception]. The Cabinet has not asserted that it is acting as a law enforcement agency or an agency involved in administrative adjudication in the matter of Dr. Henry’s Medicaid payments. Nor has the Cabinet identified for the record an agency with concurrent jurisdiction in this matter that has requested that the disputed documents be withheld until after enforcement action is taken or a decision is made to take no action [footnote omitted]. Nor has the Cabinet established that the disputed documents were compiled in the process of detecting and investigating statutory or regulatory violations. Instead, the record discloses that the documents were generated in the normal course of business, and therefore independently of any investigative process. Finally, the Cabinet does not provide a sufficient description of the harm to the agency that would result from premature disclosure of the records. More than a “bare claim” [footnote omitted] that the agency will be harmed is required, and the Cabinet offers no explanation of the potential harm it or an agency with concurrent jurisdiction might suffer by premature disclosure. Accordingly, we find that the Cabinet for Health Services’ reliance on KRS 61.878(1)(h) was misplaced.
01-ORD-67, p. 7 (emphasis added). First and most importantly, in the instant appeal the requested records are not in the custody or control of the Authority. Moreover, the Authority has successfully demonstrated that KSP is engaged in an active investigation and has requested that the disputed documents, to the extent the Authority could retrieve or duplicate them, be withheld until after enforcement action is taken, and has sufficiently described the harm that would result from premature disclosure. The Open Records Act does not require more. We therefore affirm the Stanford-Lincoln County Industrial Authority’s partial denial of Ms. Belcher’s request.
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.
Albert B. Chandler III
Amye L. Bensenhaver
Assistant Attorney General
John A. Nelson
330 S Fourth
P O Box 149
Danville, KY 40423-0149
Stanford-Lincoln County Industrial Authority
201 E Main Str, Ste 1
Stanford, KY 40484
Wilmot, May & Ralston
202 Lancaster Street
Stanford, KY 40484