Request By:
James L. Dickinson, Esq.
Natural Resources and Environmental Protection Cabinet
Department of Law
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Gregory D. Stumbo, an attorney representing T T & M Mining Company, by letter of 19 May 1989, has appealed your 18 May 1989 letter denying access to citizens' complaints lodged against T T & M Mining Company.
FACTUAL BACKGROUND
Gregory D. Stumbo, an attorney representing T T & M Mining Company (Permit No. 836-5131), by letter of 12 May 1989, asked to inspect "public records kept concerning the above . . . permit number, specifically citizens' complaints . . . ." Mr. Stumbo indicated that his client, Mickey Martin, had previously (before 12 May 1989) asked to inspect these same records and was denied.
You wrote Mr. Stumbo on 18 May 1989, that Mr. Stumbo's client could have access to any citizen's complaint letter "not designated as being confidential by the complaintant (sic)." You further indicated that "with respect to any letters marked confidential or in which confidentiality was requested, your request for access must be denied."
You directed Mr. Stumbo's attention to 405 KAR 12:030, and indicated such provision was adopted as part of the state permanent regulatory program and derived from "30 U.S.C. 842.12," which you indicated was a federal regulation prohibiting disclosure of information confidentially communicated to the state regulatory agency. (Actually, the correct citation for this regulation is 30 C.F.R. § 842.12(b)). You indicated further that since some of the material requested by Mr. Stumbo's client had been designated as confidential, the request for the material was denied pursuant to 405 KAR 12:030 as well as the provisions of KRS 61.878(f) and (i).
Mr. Stumbo appealed your denial by letter of 19 May 1989.
OPINION OF THE ATTORNEY GENERAL
It should be initially observed that KRS 350.069 requires the Natural Resources and Environmental Protection Cabinet (Cabinet) to "promulgate those regulations that are consistent with and no less effective than the federal regulations promulgated pursuant to . . . the Surface Mining Control and Reclamation Act of 1977 . . . ." (Emphasis added.) 1
The state regulation on which the Cabinet partially relies for its refusal to disclose the requested information is found at 405 KAR 12:030 Section 1(2) and states:
The identity of any person supplying information to the cabinet relating to a possible violation or imminent danger or harm shall remain confidential with the cabinet if requested by that person, unless disclosure is required by law. (Emphasis added.)
As the Cabinet stated in its denial of the request for information, this state regulation is derived from 30 C.F.R. § 842.12(b), which is the companion federal regulation promulgated pursuant to the Act. This federal regulation states:
The identity of any person supplying information to the Office relating to a possible violation or imminent danger or harm shall remain confidential with the Office, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required under the Freedom of Information Act (5 U.S.C. 552) or other Federal law.
Recalling the mandate of KRS 350.069, this office is reminded that the state regulation in question must be construed to be "consistent with and no less effective than the federal regulation []." The state regulation prohibits disclosure of the identity of the informant if the informant has requested confidentiality, unless the disclosure is required by law. Reading the disclosure requirement of the state regulation as being "consistent with and no less effective than" that of the federal regulation, this office takes it to mean, as stated in 30 C.F.R. § 842.12(b), "required under the Freedom of Information Act" (F.O.I.A.) or "other federal law. " We are of the opinion that if the informant chooses to accompany the inspector on the inspection the informant's identity is no longer protected, but is not required to be disclosed.
An examination of the F.O.I.A. now becomes necessary in order to discern if there is a requirement to disclose the identity of a confidential informant. There is none. There is, on the contrary, a provision of the F.O.I.A. that excepts application of it to matters that are records or information compiled for law enforcement purposes if their production could reasonably be expected to disclose the identity of a confidential source. 5 U.S.C.A. § 552(b)(7)(D).
There does not appear to this office to exist any "other federal law" requiring the disclosure of a confidential informant's identity, including any such requirement under the Act.
KRS 61.878(1)(i), also partially relied upon by the Cabinet for its refusal to release the requested information, excludes from the applicability of the disclosure requirements of the Open Records Act "information the disclosure of which is prohibited by federal law or regulation. "
It may be pointed out that under KRS 61.878(1)(f) "the identity of informants not otherwise known" are disclosable "after enforcement action is completed or a decision is made to take no action." This subpart of the statute does not apply to the question of disclosing the identity of an informant who has requested confidentiality for two reasons. First, the concern of this subpart is with disclosure of information that "would harm the agency." Its thrust is not to guard the informant, but the agency. Second, this subpart speaks only of informants "not otherwise known." This is a less select group than those who take the affirmative step of requesting confidentiality. Any given informant's identity at the same time may be both (a) not otherwise known, and (b) not requested to be confidential.
This office therefore concludes that the Cabinet's refusal to disclose the identity of any complainant who had requested confidentiality in relation to a complaint made of an alleged violation by T T & M Mining Company is supported by law.
Having concluded that disclosure of the identity of those confidential complainants is not required, the question of whether the remaining portions of the citizens' complaints are subject to disclosure now obviously presents itself. See KRS 61.878(3).
The only other authority given by the Cabinet for its refusal to honor the request for information is KRS 61.878(1)(f). This law excludes from ordinary disclosure:
Records of . . . 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 . . . . 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.
Therefore, the Cabinet may refuse to disclose any of the citizens' complaints only until it decides that no action will be taken, or until the action it takes is completed, and only if an earlier disclosure would harm the agency in either of the two ways set forth in subpart (f).
It is therefore the two-part Opinion of the Attorney General that: (1) the identity of the informants who have requested confidentiality were properly not disclosed; and (2) the remaining portions of the requested citizens' complaints may, subject to the judgment of the Cabinet, be withheld only until the Cabinet's action is completed or the Cabinet has decided to take no action.
As required by statute, a copy of this Opinion is being sent to Mr. Gregory D. Stumbo who requested it.
Footnotes
Footnotes
1 The federal Act referred to in this Section is compiled as 30 U.S.C. §§ 1201 - 1328, and will hereafter in this opinion be referred to as "the Act."