Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Board of Psychology relative to the July 11, 2006 request of Greg Morehead for records "on case number 05-21 and all complaints and documentation on Kim Wolfe, Ph.D., MSN, CS, ARNP" violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, we conclude that the Board properly relied upon KRS 61.878(1)(h) in denying the request for a copy of the complaint and other records pertaining to case number 05-22, as the records are part of an ongoing administrative adjudication before the Board of Nursing.
In his letter of appeal, dated August 8, 2006, Mr. Morehead stated that he had yet to receive a response to his request.
After receipt of notification of the appeal, Hiren Desai, Attorney, Finance and Administration Cabinet, on behalf of the Board, provided an August 18, 2006, response to this office on the issues raised in the appeal. In his response, Mr. Desai advised that information responsive to Mr. Morehead's request had been gathered and along with a cover letter dated August 4, 2006, was mistakenly filed in the agency's ORR completed file and had not been mailed to Mr. Morehead. He stated that an additional response was prepared on August 18, 2006, advising Mr. Morehead of the unintended delay in the agency's response and this response along with the original August 4, 2006, letter and copies of the requested information were mailed to him. In his response, Mr. Desai suggested that, because the responsive records had been mailed to Mr. Morehead, the appeal was moot.
By letter dated August 21, 2006, Mr. Morehead submitted to this office a reply to the Board's response, stating that the Board's minutes stated in the "complaints" a case number 05-21, and all he received was a 2 page affidavit and a 2 page settlement agreement. In his reply, he stated he wanted a copy of the complaint and had not received it and, thus the appeal was not moot.
As a result of Mr. Morehead's reply letter, we requested the Cabinet, under authority of KRS 61.880(2)(c), to provide additional information responsive to Mr. Morehead's reply.
In the Cabinet's response, Mr. Desai stated that the Board had advised that its December 2005 meeting minutes had incorrectly referred to the requested complaint against Ms. Wolfe as case number 05-21, but the case number was correctly reported as case number 05-22 in its February 2006 meeting minutes. He further advised that on August 18, 2006, the Cabinet had, in good faith, provided Mr. Morehead with a copy of the Settlement Agreement, Affidavit and Assurance of Voluntary Compliance relative to closed agency case number 01-04, even though this was not related to case number 05-21. Mr. Desai explained that after receipt of our request for additional information, he contacted the Board and it was determined that the only other information on Ms. Wolfe related to case number 05-22, which had been referred to the Board of Nursing for further investigation. However, Mr. Desai stated the Cabinet was unsure whether this information could be released in light of KRS 61.878(1)(h), which exempts certain records from disclosure during an administrative adjudication action.
For the reasons that follow, we find that the Board, with the exception of procedural irregularities, properly relied upon KRS 61.878(1)(h) in denying Mr. Morehead's request for a copy of the complaint and records pertaining to case number 05-22 as the records are part of an ongoing administrative adjudication before the Board of Nursing.
KRS 61.880(1) requires that a public agency respond to an open records request within three business days. As noted above, although it was unintentional, the Board failed to meet this requirement and so acknowledged this fact in its responses. This failure to respond within three business days was a procedural violation of the Open Records Act.
Addressing the substantive issue,
KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
Records of law enforcement agencies or 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 or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. 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[.] . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
This office has held that where there is concurrent jurisdiction between two agencies, and they both have an interest in the matter being investigated, the records of one agency may be withheld, under authority of KRS 61.878(1)(h), if premature release of the requested records could harm the ongoing investigation and prospective law enforcement action of the other agency. 97-ORD-52; OAG 90-116.
In 97-ORD-52, we held that the Cabinet for Public Protection properly relied upon KRS 61.878(1)(h) in denying a request for lists and inventories of evidence taken from persons suspected of violating the alcoholic beverage control laws. Although the records were prepared by the Cabinet in the ordinary course of business and were part of an internal Cabinet investigation, they had been turned over to the Attorney General and were then part of an ongoing Attorney General's investigation. The Attorney General advised that the 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." We concluded that the Cabinet, under authority of KRS 61.878(1)(h), had properly denied access to the requested records.
In OAG 90-116, we held that the Department of Agriculture properly relied upon KRS 61.878(1)[h] in denying access to a FBI subpoena while a federal investigation was pending. The U.S. Attorney's office had requested the Department not to release the subpoena and related records because it could harm the federal government's investigation "by prematurely indicating the documents, materials, or issues that are being reviewed and scrutinized by the federal government."
The facts before us indicate that both the Board of Psychology and the Board of Nursing have or had concurrent jurisdiction over activities relating to the conduct of Ms. Wolfe. The Board of Psychology advised that its complaint number 05-22 and information related to it had been referred to the Board of Nursing for further investigation. If it has not already done so, the Cabinet should contact the Board of Nursing to determine if premature release of these records would harm or compromise the Board of Nursing's administrative adjudication. Under these facts and circumstances, we conclude that the Board properly denied Mr. Morehead's request on the basis of KRS 61.878(1)(h) and the concurrent jurisdiction of the two agencies over the subject matter of the investigations.
If the Board has other complaints responsive to Mr. Morehead's request in which final agency action has been taken, that is, after "enforcement action is completed or a decision is made to take no action," those complaints should be made available for his inspection. KRS 61.878(1)(h). The same would apply to the Board of Nursing's current investigation involving the records at issue here.
A party aggrieved by this decision may appeal it by initiating an 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.