Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Revenue Cabinet properly relied on KRS 61.878(1)(k) and Rule 6(e) of the Federal Rules of Criminal Procedure in denying Courier-Journal reporter Tom Loftus's request for copies of any subpoena (s) issued by federal authorities. For the reasons that follow, we conclude the Cabinet properly denied the request under authority of KRS 61.878(1)(k) and Rule 6(e) of the Federal Rules of Criminal Procedure.
By letter dated October 15, 2002, Mr. Loftus requested copies of the following:
. . . any and all subpoenas served on the Revenue Cabinet by any investigative agencies since Sept. 16, 2002. This request includes, but is not limited to, subpoenas the cabinet has received from the FBI, any federal grand jury, the U.S. Attorney's offices in the Eastern and Western Districts of Kentucky, the Kentucky Attorney General's Office and the Executive Branch Ethics Commission.
This request also seeks copies of any correspondence and all other attachments to the subpoena (s) which the Revenue Cabinet has received.
By letter dated October 15, 2002, Alex W. Rose, General Counsel, responding on behalf of the Cabinet, denied the request, stating in relevant part:
In response to the Open Records Request, the Cabinet has received no subpoenas from any state investigative agency.
The Cabinet cannot comply with your request with respect to subpoenas from the federal agencies you list. Whether the Cabinet has, in fact, received subpoenas or the contents of any subpoenas would appear to be governed by Rule 6(e) of the Federal Rules of Criminal Procedure. Therefore, the Cabinet cannot comply with your request under the open records law. See KRS 61.878(1)(k).
Following the denial of Mr. Loftus's request, attorney Jon L. Fleischaker initiated the instant appeal on behalf of his client, The Courier-Journal, requesting this office review the denial. In his letter of appeal, Mr. Fleischaker speculates that the subpoenas at issue served on the Cabinet by federal authorities are more than likely requesting the production of documents. He argues that the Cabinet "is clearly not a party to whom Rule 6's general rule of secrecy applies" and thus "cannot claim Rule 6 as a shield to disclosure under the Open Records Act. " He further argues there is nothing in Rule 6 which prohibits a public agency from complying with its obligations under the Open Records Act. In support of this position, he asserts:
In this situation, the Revenue Cabinet is tantamount to a witness on whom a subpoena has been served and to whom the disclosure prohibition of Rule 6 does not apply. See United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983). Rule 6's obligation of secrecy simply does not apply to the Revenue Cabinet. See id.
This situation is akin to those examined in In re Vescovo Special Grand Jury, 473 F.Supp. 1335 (D.C.Cal., 1979) and In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir. 1987). These cases establish that the government cannot legally impose an obligation of secrecy upon the recipient of a grand jury subpoena duces tecum. Just as a witness is free to disclose his oral testimony before a grand jury, he is free to disclose what documentary evidence he has been compelled to provide a grand jury. Id. The Court in In re Grand Jury Proceedings specifically held that a recipient of a federal grand jury subpoena "is under no legal obligation to keep secret the subpoena or the fact of his or her compliance with it." 814 F.2d at 70. Likewise, the Revenue Cabinet is free under Rule 6 to disclose both the fact of its having received subpoenas and the subpoenas themselves.
Because [Rule] 6(e) is not a federal law that prohibits disclosure of the subpoena (s) at issue, the Revenue Cabinet's denial has no basis in KRS 61.878[(1)](k) and is therefore a violation of the Open Records Act. Thus, The Courier-Journal respectfully requests that the Revenue Cabinet be ordered to disclose the requested subpoenas immediately.
After receipt of Notification of the Appeal and a copy of Mr. Fleischaker's letter of appeal, Douglas M. Dowell, Attorney Manager, Division of Legal Services, provided this office with a response on behalf of the Cabinet to the issues raised in the appeal. In his response, Mr. Dowell advised:
The Cabinet relies upon KRS 61.878(1)(k), which excludes or exempts from the coverage of the Open Records Act "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " Under Rule 6 (e) of the Federal Rules of Criminal Procedure, any grand jury subpoena information of the nature specified in the Courier-Journal's request, including whether the Cabinet or its employees have indeed been served with such subpoenas and the identities of any Cabinet employees who may have been subpoenaed to testify before the grand jury, cannot be disclosed. See, e.g., Untied States v. White Ready-Mix Co., 509 F. Supp. 747 (N.D. OHIO 1981); Kanter v. Internal Revenue Cabinet, 496 F. Supp. 1004 (N.D. Ill. 1980); Hiss v. Dept. of Justice, 441 F. Supp. 69 (S.D.N.Y. 1977); (1980); cf. Pigman v. Evansville Press, 537 N.E.2d 547 (Ind. App 1989). Copies of the cases just cited are enclosed.
Fed. R. Crim. P. 6(e)(2) states as follows:
(Emphasis added.) Paragraph (3)(A)(ii) referred to above states as follows:
(Emphasis added.)
Any Revenue Cabinet personnel served with grand jury subpoenas would therefore be persons to whom disclosure is made under paragraph (3)(A)(ii) of Fed. R. Crim. P. 6(e). Any disclosure of this information would in turn be prohibited by Fed R. Crim. P. 6(e)(2), thereby bringing KRS 61.878(1)(k) into play with respect to The Courier-Journal's open records request.
Finally, the Cabinet's denial is also supported by KRS 61.878(1)(l), which excludes or exempts from the Open Records Act's coverage "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The scope of The Courier-Journal's request would embrace any possible grand jury subpoenas concerning taxpayer information and records. The mere fact that a subpoena has been served upon the Cabinet or its employees concerning a taxpayer would constitute information relating to the "affairs" of that person or his, her, or its business, which would in turn be confidential and not subject to disclosure under the Open Records Act. See KRS 131.190(1); 131.081(15); 133.047; 131.990(2); 61.878(1)(l).
We are asked to determine whether the Cabinet's denial of the request for copies of subpoenas served on the Agency by federal authorities violated the Open Records Act. For the reasons that follow, we conclude the Cabinet properly denied the request under authority of KRS 61.878(1)(k) and Rule 6(e) of the Federal Rules of Criminal Procedure.
The Cabinet argues that Federal Rule of Criminal Procedure 6(e), in tandem with KRS 61.878(1)(k), mandate nondisclosure of the federal subpoenas identified in Mr. Loftus's request. Although the application of Rule 6(e) in the denial of a request for a copy of a federal subpoena presents an issue of first impression for the Attorney General, we have discussed the application of Rule 6(e) in other contexts.
In 93-ORD-91, we rejected the Transportation Cabinet's argument that records pertaining to two companies doing business with the Cabinet, which had been subpoenaed by a federal grand jury, were excluded from public inspection by KRS 61.878(1)(k) and Rule 6(e)(6). In that decision, the requester had not requested copies of the federal subpoenas, but records concerning two highway contractors which the Cabinet maintained in the ordinary course of business.
In reaching the decision that the Cabinet had improperly denied the request under authority of Rule 6(e)(2), as well as Rule 6(e)(6), we stated:
KRS 61.878(1)(k) authorizes a public agency to withhold, except upon order of a court of competent jurisdiction, "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " The Cabinet maintains that this provision operates in tandem with Federal Rule of Criminal Procedure 6(e)(6), hereinafter referred to as Rule 6(e)(6), to prohibit release of contracts, correspondence, and other materials involving Tenny Pavoni Associates and TenEch Engineering and the Transportation Cabinet. Rule 6(e)(6) relates to recording and disclosure of grand jury proceedings and provides:
In [the Cabinet's] view, this rule extends to records in the Cabinet's custody which have also been subpoenaed by the U.S. Attorney.
We begin by noting that the federal rule cited by [the Cabinet] narrowly applies to "records, orders and subpoenas relating to grand jury proceedings," and is aimed at preventing disclosure of "such documents as grand jury subpoenas and immunity orders." Rule 6(e)(6). These documents . . . may reveal details of grand jury investigations, particularly witnesses and targets. Comptroller General, More Guidance and Supervision Needed Over Federal Grand Jury Proceedings 10, 14 (Oct. 16, 1980). Rule 6(e)(6) does not relate generally to documents produced pursuant to a grand jury subpoena, but only to this narrow category of records.
?
The records at issue in this appeal were created in the normal course of business for purposes not related to the prospect of a grand jury proceeding. The records have been subpoenaed for use in a grand jury investigation. This fact, standing alone, does not insulate the documents from the mandatory disclosure provisions of the Open Records Act. [The Cabinet] does not indicate that it did not retain custody of copies of the records, or that the records are exempt from disclosure under another exception to the Open Records Act. [It's] denial is instead premised entirely on the purported obligation of secrecy imposed on the Cabinet by operation of Rule 6(e).
93-ORD-91, p. 2-4. (Emphasis added.)
Thus the records at issue in 93-ORD-91 were neither federal subpoenas nor records requested by the grand jury, but records created by the Transportation Cabinet in its normal course of business for purposes not related to the prospect of a grand jury proceeding. We concluded that the Cabinet, under those circumstances, could not rely on Rule 6(e) in denying the requester access to agency records maintained in the normal course of business.
In the instant case, the records at issue are federal subpoenas, which would relate directly to the federal grand jury proceedings. As such, they would come under that narrow class of records that "shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before the Grand Jury. " Rule 6(e)(6). We believe that Rule 6(e)(6) supports the denial of the request for copies of the subpoenas because they relate directly to grand jury proceedings and disclosure of the subpoenas could reveal details and the direction of the grand jury investigation, as well as possible witnesses and targets. In discussing the prohibition against disclosure of grand jury matters, the federal courts have observed, as we quoted in 01-ORD-67:
The prohibition against the disclosure of matters occurring before the grand jury is not a prohibition against the disclosure of all information that is presented to the grand jury. "The aim of the rule is to prevent disclosure of the way in which information was presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury's suspicion focuses, and specific details of what took place before the grand jury. "
In the Matter of Grand Jury Investigation (90-3-2), 748 F.Supp. 1188, 1207 (E.D. Mich. 1990), citing In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1302-03 (M.D. Fla. 1977).
Accordingly, we conclude that because Rule 6(e)(6) prohibits the disclosure of grand jury subpoenas, the Revenue Cabinet properly denied the request for a copy of the subpoenas under authority of Rule 6(e) 1 and KRS 61.878(1)(k). Additional support for this conclusion is found in cases and opinions from other jurisdictions that have considered cases involving requests for grand jury subpoenas under the state public records laws and reached similar conclusions. Although these authorities are not controlling in this appeal, we find their analysis compelling and adopt their reasoning here.
In
Pigman v. Evansville Press, 537 N.E.2d. 547 (1989), the Indiana court held that Pigman, prosecutor of Vanderburgh County, properly denied the newspaper's request, under Indiana's public records laws, to inspect grand jury subpoenas. The court reviewed the Indiana statute dealing with the conduct of grand jury proceedings and found it similar to Fed.R.Crim.P. 6(e) and applying federal case law construing Rule 6(e), determined that grand jury subpoenas were not subject to disclosure pursuant to Indiana's public records law. In reaching this conclusion, the court stated:
Thus, the importance of, and preference for, disclosure that is inherent in "Public Records" enactments has given way to the preservation of the grand jury system and the concomitant necessity for secrecy attending the proceedings. The disclosure of grand jury subpoenas, revealing as they must the names of witnesses, targets, and the nature of the grand jury investigations has been consistently disallowed, since subpoenas reveal the inner workings of the grand jury. . . .
(Footnote omitted.) See, also,
State ex rel. Beacon Journal Publishing Company v. Waters, 67 Ohio St. 3d 321, 617 N.E.2d 1110, (1993), in which the Ohio Supreme Court affirmed the Court of Appeals' denial of a complaint for writ of mandamus to compel disclosure of grand jury subpoenas and witness book, opining that Ohio Crim.R. 6(E) provided an exception to disclosure under the Public Records Act; AGO 90-48, opinion of Florida Attorney General that grand jury subpoenas are not subject to Florida's Public Records Law and, in order "to lift the secrecy surrounding grand jury proceedings, there must be a judicial finding of particularized need for disclosure that outweighs the benefits of maintaining secrecy. "
As noted above, Rule 6(e)(6) authorizes the nondisclosure of the subpoenas because they relate directly to the grand jury proceedings and their disclosure could reveal details and the direction of the grand jury investigation, as well as possible witnesses and targets. Thus, we conclude, the Revenue Cabinet properly denied the request for a copy of the subpoenas under authority of Rule 6(e) and KRS 61.878(1)(k).
Because the foregoing is dispositive of this appeal, we need not address other bases cited by the Cabinet in support of its actions relative to Mr. Loftus'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.
Jon L. FleischakerDinsmore & Shohl LLP1400 PNC PlazaLouisville, KY
Alex W. RoseOffice of General CounselKentucky Revenue Cabinet 200 Fair Oaks LaneFrankfort. KY 40602-0423
Douglas M. DowellAttorney ManagerDivision of Legal ServicesKentucky Revenue Cabinet 200 Fair Oaks LaneFrankfort. KY 40602-0423
Footnotes
Footnotes
1 Freedom of Information Act, 5 U.S.C.A. § 552, Exemption 3 provides that the disclosure provisions of the FOIA do not apply to matters that are specifically exempted from disclosure by statute. Rule 6(e) of the Federal Rules of Criminal Procedure has been held by the Court of Appeals for the D.C. Circuit to constitute a statute within the meaning of FOIA Exemption 3. Fund for Constitutional Gov't v. Nat'l Archives and Records Serv., 656 F.2d 856 (D.C. Cir. 1981). In Fund for Constitutional Gov't, the Court determined that information which would reveal matters occurring before the grand jury or elucidate the inner workings of the grand jury was exempt from disclosure under the FOIA. Id. at 869-70.