Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Legislative Research Commission violated provisions of the Open Records Act in denying Kentucky Enquirer reporter Patrick Crowley's February 16, 1998, request to inspect telephone records for calls originating from a specifically identified telephone line used in the Senate Republican leadership office and a specifically identified telephone line used in Senator Gex Williams's Capitol Annex Senate office. For the reasons that follow, we reject each of the arguments advanced by the Legislative Research Commission in support of its denial of Mr. Crowley's request, and find that the Commission has not made a sufficient showing under KRS 61.872(6) that disclosure of the particular records which he requested would constitute an unreasonable burden.
On February 16, Mr. Crowley requested access to records reflecting calls made from these telephone lines to the following numbers:
[], a Duluth Ga., . . . political consulting firm Sen. Williams is using in his Congressional campaign[;]
[], or [], in Stevensville, MI., numbers used by Sen. Williams [sic] campaign manager[;]
[], [], and [], numbers at Sen. Williams [sic] campaign headquarters in Erlanger, Ky.
[], the number for Sen. Williams [sic] Washington, D.C. polling firm[;]
[], the number of James H. Wren, a Williamsburg, Ky., lawyer Sen. Williams attempted to recruit to run against Sen. David Williams of Burkesville.
Mr. Crowley's request was denied.
In a letter dated February 20, 1998, Legislative Research Commission General Counsel John Schaaf explained that it is the Commission's policy "to deny requests for telephone records of specific calls made from telephones in the offices of members of the General Assembly." Mr. Schaaf indicated that "the phone lines specified in [Mr. Crowley's] letter are used primarily by members, and by leadership office staff, with whom members have a fiduciary relationship." Relying on the Constitution of the United States and the Constitution of Kentucky, KRS 7.120, KRS 61.878(1)(a), (d), (i), (j), and (l), and KRS 61.872(6), Mr. Schaaf denied the request. He enclosed a copy of a December, 1996, letter to the Lexington Herald-Leader setting forth, in greater detail, the legal basis for the Commission's policy, and noted that "recent cases support the denial of requests for preliminary materials [See
Courier-Journal v. Jones, Ky.App., 895 S.W.2d 6 [(1995)], and materials which injure the privacy interests of individuals [See
Zink v. Commonwealth, Dept. of Workers' Claims, Ky.App., 902 S.W.2d 825 (1994)]." As an alternative, Mr. Schaaf agreed to make available for inspection "the total costs of calls for any period of time, made from the phone lines specified in [Mr. Crowley's] letter."
In a subsequent letter to this office, the Legislative Research Commission elaborated on its position. The Commission asserted that Mr. Crowley's appeal:
raises important constitutional issues relating to citizens' rights to petition their government, legislative immunity, separation of powers, and the ability of the General Assembly to follow its own rules without encroachment from officials in the executive branch of state government.
Further, the Commission argued:
This appeal involves significant privacy interests of citizens. Internet and other computer technology now make it possible for a person to analyze a computer disk of telephone records to quickly learn the names and addresses of thousands of individuals who have had contact with members of the General Assembly, along with the date on which the conversation took place and the duration of the call.
Public release of this information and the subsequent media questioning of citizens would have a chilling effect on citizens' willingness to contact their elected representatives. The inevitable questioning of legislators and citizens regarding the nature of these phone calls would be an intolerable interruption on the legislative process, and would discourage members of the General Assembly from calling citizens.
With specific reference to Mr. Crowley's request, the Commission concluded:
The Kentucky Enquirer seeks records of calls to specific numbers. It is impossible to determine if any call is related to a legislative purpose, or some other purpose, and it would place an unreasonable burden on anyone to attempt to make that determination on a call by call basis.
The Commission's position is summarized below, along with our analysis of that position.
Separation of powers and rules of proceedings
The Commission argues that "it would be a violation of Kentucky's strict separation of powers principle for the Attorney General to determine if the House or Senate have violated one of their own Rules [of Proceeding in denying a request for telephone records from specifically identified telephone lines to specifically identified telephone lines]." In support, the Commission maintains:
Section 39 of the Kentucky Constitution states "Each House of the General Assembly may determine the rules of its proceedings . . ."
The state's Constitution (at Sections 27 and 28) also requires a strict separation among the three branches of government, and prohibits incursion of one branch of government into the powers and functions of others. Legislative Research Commission ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984) (Legislative encroachment upon the executive branch); Ex parte Auditor of Public Accounts, 609 S.W.2d 682 (Ky. 1980) (executive encroachment upon the judicial branch) ; Arnett v. Meade, 462 S.W.2d 940 (Ky. 1971) (legislative encroachment upon the judicial branch) . As an executive branch official, the Attorney General cannot require either the State Senate or House of Representatives to comply with or disregard its own rules of procedure.
The following Rules apply to the records at issue in this appeal:
We find this position unpersuasive. It is the opinion of this office that the General Assembly is not exempt from the Open Records Act.
In enacting the Open Records Act, the General Assembly recognized:
The basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KRS 61.871. The General Assembly did not exclude itself from the Open Records Act, but made the Act binding upon itself by defining the term public agency to include "any body created by state or local authority in any branch of government. " KRS 61.870(1)(g).
Section 29 of the Constitution of Kentucky creates the General Assembly, vesting the legislative power in a House of Representatives and a Senate. The General Assembly is thus a body created by the constitution of this state in the legislative branch of government as defined in KRS 61.870(1)(g). Although the Attorney General has not had occasion to declare that the General Assembly is a public agency for purposes of the Open Records Act, it has expressly held that it is a public agency for purposes of the Open Meetings Act. 93-OMD-63 (holding that pursuant to KRS 61.805(2)(b), the House of Representatives is a public agency) ; 94-OMD-23 (adopting 93-OMD-63 and characterizing the House of Representatives as a public agency) . In the appeal before us, we are asked to determine if the General Assembly is subject to the Open Records Act. Based on the analysis set forth above, we believe the General Assembly is a "public agency" for purposes of the Open Records Act, and that is records are subject to public inspection unless otherwise exempt pursuant to KRS 61.878(1)(a) through (l).
We have previously rejected the argument that an agency is not subject to the Act because the General Assembly failed to include an express statement to that effect, concluding that "the Open Records Act is applicable to the records of all public agencies, as defined in KRS 61.870(1)(a) through (k), unless those records are specifically excluded from its application." 97-ORD-66, p. 2. In that decision, as here, there is "no reasonable basis for excluding from the definition of a public agency" the
General Assembly. Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, 834 S.W.2d 681, 682 (1992).
We further find that our review of the Commission's denial of Mr. Crowley's request does not violate the doctrine of separation of powers. As noted, the General Assembly did not exclude itself from the Open Records Act in enacting KRS 61.870 to 61.884, but instead made the Act binding upon itself and the Legislative Research Commission by expansively defining the term "public agency. "
We reject the Commission's argument that the General Assembly's status can be likened to that of the courts and judicial agencies as it relates to the application of the Open Records Act. Citing Ex parte Farley, Ky., 570 S.W.2d 617, 624 (1978), in which the Supreme Court declared that "the custody and control of records generated by the courts in the course of their work are inseparable from the judicial function itself and are not subject to statutory regulation, " the Commission asserts that "there are details of the Open Records law that 'present interferences' that are inconsistent with the orderly conduct of business--in this case, the day to day process of the General Assembly," and that adherence to the law presents an "impediment to the efficient conduct" of its work. The Commission argues, by analogy to records of the court, that records generated by the House and Senate are subject to their own Rules of Proceeding, and "it would be a violation of Kentucky's strict separation of powers principle for the Attorney General to determine if [these bodies] have violated one of their own Rules."
In Farley , the Court expressed a willingness to accept the policies of the Open Records Law as a matter of comity, but affirmatively asserted that its records are not subject to statutory regulation under separation of powers. The General Assembly, having crafted the Open Records Act to include its own records, is bound by the terms of the Act, including the mechanism for administrative review by the Attorney General which it enacted into law.
We do not find persuasive the Commission's argument that the House and Senate Rules of Proceeding extend to telephone records listing long distance calls made from legislators' telephones. Fundamental to the Commission's argument is the theory that the General Assembly's authority to establish its own rules of proceeding enables it to suspend operation of a statute which is binding upon it. It is our view that these rules of proceeding do not extend to telephone records. Section 39 of the Constitution of Kentucky provides that "each House of the General Assembly may determine the rules of its proceedings. . . ." The relevant House and Senate rules state:
House Rule 31. Custody of Papers. The Legislative Research Commission shall have custody of all records, minutes, reports, and documents pertaining to legislation, and shall not allow them to be taken from its possession without the leave of the House, unless to be delivered to the chairman of a committee to which they have been referred. The Legislative Research Commission shall cause to be enclosed on bills and papers brief notes of proceedings had thereon by the House and preserve the same in convenient files for reference.
Senate Rule 31. Custody of Papers. The clerk shall have custody of all records, papers and bills of the Senate and shall not allow them to be taken out of the Clerk's possession without the leave of the Senate, unless to be delivered to the chairman of a committee to which they have been referred or to the Legislative Research Commission, as specified in these rules, and then the Clerk shall take a proper receipt therefor. The Clerk shall endorse on bills and papers brief notes of proceedings had thereon by the Senate and preserve the same in convenient files for reference.
We hold that those rules are inapplicable to the disputed records. We find that the Commission's construction of these rules is overly expansive, and that they cannot reasonably be construed to extend to telephone records. We therefore see no impediment to our review of the Commission's denial of Mr. Crowley's request.
Speech and Debate Clause
The Commission next argues that "an opinion of the Attorney General ordering release of legislative records constitutes being questioned in another place" in contravention of Section 43 of the Constitution of Kentucky. Section 43 provides:
The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.
It is the position of the Commission that "telephone calls made or received by members of the General Assembly are 'legislative acts' and are protected under the Speech and Debate Clause. . . ." In support, it cites various authorities from other jurisdictions, including In re Grand Jury Investigation, 587 F.2d 589 (3<rd> Cir 1978), wherein the court opined:
The telephone is the single most important and often used instrument of communication in the House of Representatives. It may be used by the Majority and Minority Whips of the House to transmit information on scheduling of votes and other related legislative information. It may be used by House members in the process of persuading each other on the merits of proposed legislation. Such uses are legislative acts by even the narrowest test of the few cases which have considered what acts fall within the Speech and Debate Clause. Those uses are plainly integral to the deliberative or communicative processes of the House.
In re Grand Jury Investigation , at 594. The court went on, however, to reject the idea that because some of the entries reflected in a legislator's telephone bill reflect legislative acts, the entire bill qualifies for protection under the Speech and Debate Clause. Telephone billing records, "reflecting as they do certain purely personal phone calls, necessarily include some calls which by even the most generous reading of the Speech and Debate Clause are not protected." Id. at 595, 596.
This holding echoes the narrow view of the Speech and Debate Clause articulated by the
United States Supreme Court in Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972). In that opinion, the Court held:
Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations.' United States v. Doe , 455 F.2d [753, 760 (1<st> Cir 1972)].
We believe that this is the better view, and the view that promotes the purpose for which the Kentucky Open Records Act was enacted. Disclosure of those portions of the telephone records requested by Mr. Crowley, which do not involve legislative acts that are not an integral part of the deliberative and communicative process, "should be disclosed since they may reveal whether the public servants are indeed serving the public, and the policy of disclosure [will] provide [] impetus for [the] agency steadfastly to pursue the public good."
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992).
Exemptions under the Open Records Act
Having determined that there is no impediment to this office discharging its statutorily mandated duty under KRS 61.880(2), we proceed to an analysis of the Legislative Research Commission's objections to disclosure under the Open Records Act. The Commission argues that the telephone records which Mr. Crowley requested are protected from disclosure by the exceptions found at KRS 61.878(1)(a), (d), (I), (j), and (l), and that it would place an unreasonable burden on the agency to determine, on a call by call basis, if any of the calls was related to a legislative purpose. We reject this position, as it relates to Mr. Crowley's request, for the following reasons.
In OAG 86-21, the Attorney General held that telephone records of the Legislative Research Commission are subject to public inspection. At pages 3 and 4 of that opinion, we reasoned:
Involved here are the telephone numbers of unnamed individuals, groups or companies who have been called, presumably by public officials, on telephones purchased or leased by a public agency with public funds. Since public officials or employees are calling on telephones of a public agency at the public's expense it is presumed, or at least it is hoped, that some kind of public business is being conducted or some kind of public service is being rendered.
While it is true that it should not be too difficult to ascertain what person, group or business has been called by the public agency once the telephone number has been obtained, it seems to us that this is a price that must be paid by citizens and residents in a free and democratic society. As a general proposition the public's business must be conducted in public. If a person has been called by a public agency he may have either requested something of the public agency or he may have done something affecting the public.
Thus, we concluded that the Legislative Research Commission, as a public agency, could not adopt a policy of blanket nondisclosure of records reflecting telephone calls from designated state telephone numbers.
Nevertheless, we also recognized in OAG 86-21 that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential." Continuing, we noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted material, the agency must provide particularized justification for the partial nondisclosure.
In his February 16 request, Mr. Crowley precisely described the records to which he sought access by specifically identifying two telephone lines, and eight telephone numbers belonging to known individuals or entities. Relying on KRS 61.872(6) and various exceptions to the Open Records Act, the Commission denied the request, arguing that:
If telephone calls related to policy recommendations were to remain confidential, but disclosure of other calls was required, there would be an undue burden on the agency under KRS 61.872(6). The agency would have to differentiate between calls, an impossible task due to the difficulty in ascertaining the subject matter of each call.
Furthermore, in responding to an Open Records request, an agency should not be required to compile information or create a document that does not already exist. Not only would differentiation of calls pose an undue burden on the agency, but it would also force LRC to glean information about these calls and compile a record different from any that now exists.
The Commission offered no additional evidence to support its denial of Mr. Crowley's particular request. As we observed in OAG 86-21, there can be little doubt that portions of telephone records of public agencies may be withheld if the basis for denying access to individual entries on those records can be articulated in terms of the requirements of the open records exceptions. Records reflecting telephone calls originating from the offices of members of the General Assembly are of a uniquely sensitive character. Those records may, for example, reflect a legislator's contact with a constituent and be shielded from disclosure by operation of KRS 61.878(1)(a). See OAG 78-626 (recognizing a right of privacy as to a persons contact with a public official). Individual entries on those telephone records may, in addition, reveal the identities of previously unidentified business or industrial prospects, and therefore qualify for exclusion under KRS 61.878(1)(d). See, 93-ORD-25. Where appropriate, other exceptions may be invoked to authorize nondisclosure of individual entries on these records.
The fact that individual entries on telephone records enjoy protection under the Open Records Act does not mean that the entire category of records may escape scrutiny for purposes of determining if public funds, time and personnel are being properly used. This position finds support in OAG 86-21, 93-ORD-99, 96-ORD-238, 97-ORD-188, and in particular, in OAG 91-214, which the Commission relies upon for the proposition that citizens have a substantial privacy interest in their home telephone numbers. At page 11 of OAG 91-214, this office reaffirmed OAG 86-21, holding that the public's interest in monitoring the use of publicly funded telephone lines may outweigh the privacy interest. Members of the General Assembly who use these lines for personal, political, or other nonofficial purposes must be held to the same standard of public accountability as public employees generally. Thus, a generic determination that records of all calls originating from the offices of members of the General Assembly are excluded from the Open Records Act does not satisfy the requirements of the Act.
Mr. Crowley frames his open records request "with the precision of a rifle shot and not with the casualness of a shotgun blast."
Fiscal Court of Jefferson County v. City of Louisville, Ky., 559 S.W.2d 478, 482 (1977). He does not seek access to all telephone records for all calls originating from all telephone lines assigned to all members of the General Assembly and all members of their staff. It is incumbent on the Legislative Research Commission to review the specific records which Mr. Crowley requests, and to inquire, if necessary, into the subject matter of those calls. If the records of these calls are not properly excludable under the exceptions codified at KRS 61.878(1)(a) through (l), it is incumbent on the Legislative Research Commission to disclose the records to Mr. Crowley. If no records exist which satisfy his request, or if one or more entries is properly excludable, it is incumbent on the Legislative Research Commission to so state, and in the latter case, to cite the exception authorizing nondisclosure and briefly explain how it applies to the entries withheld.
Mr. Crowley's request does not, in our view, place an unreasonable burden on the Commission to produce public records. The burden is on the Commission to demonstrate with clear and convincing evidence the burdensomeness of the request. 92-ORD-1261. Here, no evidence was presented to support this claim of burdensomeness. Although there may be occasions when the necessity of separating exempt and nonexempt materials provides a sufficient basis for the Commission to deny access to telephone records on burdensomeness grounds, as where the request is broad and involves numerous records in which the materials are commingled (see OAG 90-4), nothing has been presented by the Commission that establishes by clear and convincing evidence that such is the case here.
Conclusion
In sum, we find that the Legislative Research Commission improperly denied Mr. Crowley's request. The Attorney General is not foreclosed from reviewing the Commission's denial of the request under the doctrine of separation of powers, and the requested records are not, as a general matter, shielded from inspection by the Speech and Debate Clause. Because the Commission did not make a sufficient showing under KRS 61.872(6), 61.878(1)(a), (d), (i), (j), or (l) that these records are exempt from public inspection, it must, consistent with the principles set forth above, afford Mr. Crowley access to the records identified in his 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.