Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet, Office of Investigations, violated the Kentucky Open Records Act in the disposition of Courier-Journal reporter Deborah Yetter's May 1, 2009, request for "[a]ll copies of investigations and reports of investigations involving the Green River Youth Development Center for the calendar years 2008 and 2009." For the reasons that follow, we find that the Cabinet's actions did not substantively violate the Act.
The Cabinet's Office of Investigations ("OOI") initially responded on May 11, 2009, 1 by letter from Gregg Muravchick, Executive Director, that the documents would be forwarded "in the next seven days" after any necessary redactions of "the full names and dates of birth of other juveniles interviewed in connection with the investigation, together with any personal information (e.g. home telephone numbers and addresses), the public release of which would constitute a clearly unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(l), 610.340, KRS 61.878(1)(a)." This initial response fulfilled the requirement in KRS 61.872(5) that a detailed explanation be provided for any delay beyond three days in providing the records. Cf. 07-ORD-251,p. 3; 06-ORD-180, p. 3.
A substantive response from Mr. Muravchick on May 18, 2009, partially invoked several exceptions to disclosure under KRS 61.878(1) which are not challenged by the Courier-Journal. The present dispute concerns an investigation designated as 2084-09, with respect to which Mr. Muravchick cited KRS 61.878(1)(h), the exception for "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation," on the basis that records relating to that investigation "are the subject of criminal litigation by the Butler County Attorney's Office." After a telephone conversation with Courier-Journal attorney Jeremy Rogers, Justice and Public Safety Cabinet Staff Attorney Leigh K. Meredith elaborated in writing on May 27, 2009:
500 KAR 13:020, Sections 2-5 require the OOI to investigate any allegations of abuse involving a juvenile residents [sic] in a Department of Juvenile Justice facility. (DJJ) Pursuant to 500 KAR 13:020 Section 6, OOI "forwards all completed investigations that are substantiated acts of abuse or neglect of a child: (a) in accordance with KRS 620.030 to the Cabinet for Health & Family Services; and (b) to the local county attorney, law enforcement, or the Kentucky State Police." OOI provided records in investigation 2084-09 to the Butler County Attorney's Office, the Butler County Office of the Commonwealth's Attorney and the Kentucky State Police.
Ms. Meredith then quoted in full KRS 61.878(1)(h) as well as KRS 17.150(2)(d), which allows withholding of portions of "[i]ntelligence and investigative reports maintained by criminal justice agencies . . . if the inspection would disclose [i]nformation contained in the records to be used in a prospective law enforcement action. "
She then noted:
The records compiled by OOI as part of investigation 2084-09 are now part of an ongoing law enforcement action by Detective Jonathan Biven, Kentucky State Police and exempt under KRS 61.878(1)(h) and 17.150(2). OOI understands that the Commonwealth's Attorney has also issued an indictment against one or more DJJ employees based on OOI's investigation, making OOI's records now part of an ongoing criminal litigation against one or more DJJ employees named in investigative case files for 2084-09. . . .
Since the records compiled by OOI are so intrinsically linked to the ongoing police investigation of KSP and criminal litigation by the Office of the Butler County Commonwealth's Attorney Office, the release of the investigative portions of those records by OOI could harm the law enforcement agencies in whose custody the records reside by the "premature release of information to be used in a prospective law enforcement action or administrative adjudication. " KRS 61.878(1)(h) and KRS 17.150(2).
(Emphasis in original.) The OOI did, however, offer to provide copies of 46 pages of relevant records that were neither considered "investigative in nature" nor subject to certain other exceptions under KRS 61.878(1).
The present appeal was initiated on May 29, 2009, by Courier-Journal attorney Jon L. Fleischaker. Mr. Fleischaker first argues that since the OOI conducts investigations for administrative purposes and then must turn over any criminal violations it discovers to police and prosecutors, it cannot be a "criminal justice agency" within the meaning of KRS 17.150(2). He draws an analogy to a police internal affairs department, which may investigate criminal matters but does so only "to the end that a determination be made as to whether an administrative rule or regulation were broken, not that a criminal prosecution be undertaken."
City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982) (emphasis in original). Accordingly, as in the cited case, he argues that KRS 17.150(2) cannot apply to the OOI's investigation.
Mr. Fleischaker then takes issue with the OOI's invocation of KRS 61.878(1)(h):
[The] exemption to disclosure codified at KRS 61.878(1)(h) applies only to law enforcement agencies or agencies involved in administrative adjudication. See University of Kentucky v. The Courier-Journal and Louisville Times Co., 830 S.W.2d 373, 377 (Ky. 1992). The OOI is neither, as the Cabinet's own website and 500 KAR 13:020 make clear. The OOI did not compile or maintain the requested records in the course of a criminal investigation or criminal litigation; the OOI compiled the records in the course of an internal investigation which has concluded, rendering the records non-exempt under KRS 61.878(1)(h) regardless. The fact that copies of the records may have been forwarded to the Butler County Attorney's Office as part of a separate criminal case is irrelevant and does not excuse the Cabinet from its obligation to disclose them under the Open Records Act.
He maintains that the OOI is "simply an internal investigative agency" and adds that "the Cabinet has not even attempted to demonstrate that the disclosure of information in the requested records would harm OOI by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action which it is not entitled to undertake."
The Justice and Public Safety Cabinet responded to this appeal on June 17, 2009, with a letter from Assistant General Counsel Amy V. Barker, including the following background information:
[OOI] is tasked specifically with investigations of statutory and regulatory violations pertaining to allegations of child abuse and other violations for juveniles at DJJ. Part of OOI's purpose is to have a mechanism for an independent agency to perform investigations to avoid DJJ reliance on in house investigations for these types of allegations.
Ms. Barker also provided further information in a letter dated July 10, 2009:
As previously stated, [OOI] is a criminal justice agency within the Justice & Public Safety Cabinet. It is authorized to investigate "facilities, staff, [and] treatment of juveniles" for the "violation of statutes, administrative regulations, policies, court decisions, [and] the rights of juveniles who are subject to the orders of the department" pursuant to KRS 15A.020(3)(g). [OOI] also refers matters to law enforcement agencies, Commonwealth's attorney, county attorney, the Attorney General, or federal agencies, as appropriate pursuant to KRS 15A.020(3)(g) and 500 KAR 13:020.
Based on these statutory powers and duties, the Cabinet asserts that the OOI is a "criminal justice agency" within the meaning of KRS 17.150(2).
The Cabinet makes two further arguments. It contends that OOI "is an agency involved in administrative adjudication. Even though it is an independent entity from DJJ, its investigation is a necessary part of any administrative adjudication handled by DJJ." Secondly, the Cabinet states as follows:
The Butler Commonwealth's Attorney's Office has an on-going criminal prosecution involving the investigative materials provided by OOI and individuals have been indicted in that prosecution (09-CR-0036). The Commonwealth's Attorney's Office has asked that the investigative information not be released. The Kentucky State Police also have an ongoing investigation concerning the matter and have asked that the investigative information not be released because its investigation is pending. The Attorney General has determined in a number of opinions that investigative information should not be released while an investigation by another agency is pending.
Both of these arguments essentially relate to the application of KRS 61.878(1)(h) . We first address the applicability of KRS 17.150(2) as incorporated into the Open Records Act by KRS 61.878(1)(l).
KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This provision operates in tandem with KRS 17.150(2) to exclude from public inspection "intelligence and investigative reports maintained by criminal justice agencies . . . [until] prosecution is completed or a determination not to prosecute has been made." The question here is whether OOI's records are "maintained by criminal justice agencies."
The analogy between OOI and a police internal affairs department, urged by the Courier-Journal, is misconceived. A police internal affairs investigation is not oriented toward criminal prosecution (as was stipulated by the parties in
City of Louisville v. Courier-Journal and Louisville Times Co., supra). Police agencies routinely grant "use immunity" to statements made during internal investigations, so that officers can be compelled to answer questions without jeopardizing their Fifth Amendment privilege against self-incrimination; thus statements which are part of the investigation cannot be used in a criminal prosecution.
McKinley v. City of Mansfield, 404 F.3d 418, 423 (6th Cir. 2005) (citing
Garrity v. New Jersey, 385 U.S. 493, 500 (1967)).
In contrast, investigations by the OOI are designed to uncover criminal violations and are routinely referred onward for prosecution, as was done in this case; nor does our in camera review of the investigation documents indicate that use immunity was granted to any DJJ employees. The OOI is therefore not analogous to a police internal affairs department. Ultimately, however, we cannot determine conclusively whether the OOI is a "criminal justice agency" within the meaning of KRS 17.150(2). The term is not defined in the statute, and the OOI is not among those entities specifically named in KRS 17.150(1) as being required to provide data to the Justice Cabinet for its centralized criminal history records. In this instance, we do not decide that issue because this appeal can be resolved on other grounds.
We turn, therefore, to the applicability of KRS 61.878(1)(h). That subsection excludes 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.
The Cabinet gives the following description of the harm that be caused by disclosure of the investigative documents in case 2084-09:
Disclosure of the investigative documents would cause harm by premature release of information to be used in a prospective law enforcement action or administrative adjudication by revealing sources of information, techniques of investigations, prematurely disclosing the contents that would interfere with obtaining reliable information, interfere with witness interviews, and interfere with jury selection.
This, in light of the reported request of the Commonwealth's Attorney that the records not be disclosed, is sufficient to establish the harm that would likely result from disclosure of these investigative documents. Cf. 01-ORD-31 (coroner may withhold autopsy report under both KRS 61.878(1)(h) and KRS 17.150(2) when criminal prosecution is in progress). It is also sufficiently evident that these records were "compiled in the process of detecting and investigating statutory or regulatory violations." The remaining question, therefore, is whether the documents are "records of law enforcement agencies or agencies involved in administrative adjudication. "
The Cabinet does not appear to argue that OOI is a law enforcement agency, but it does claim OOI to be an agency involved in administrative adjudication because of its involvement with adjudications by DJJ. We are not certain the Cabinet has made its case on this argument, since nothing in the record establishes the involvement of either OOI or DJJ in administrative adjudications. We need not decide this issue, however, because the ongoing investigation by the KSP is dispositive as to the application of KRS 61.878(1)(h).
As the Cabinet correctly argues, the Attorney General has recognized in prior decisions that the exceptions under KRS 61.878(1)(h) and KRS 17.150(2) are properly invoked when another agency having concurrent jurisdiction is conducting an ongoing investigation of the same matter. See, e.g., 94-ORD-7; 94-ORD-76; 99-ORD-60; 99-ORD-62; 00-ORD-78. Such is clearly the case in this instance, given the fact that the incident is currently under investigation by the Kentucky State Police. 2 Therefore, the investigative documents in case number 2084-09 could properly be withheld from public disclosure.
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. Fleischaker, Esq.Amy V. Barker, Esq.Gregg Muravchick, Executive Director
Footnotes
Footnotes
1 Since we have no record of when the Office of Investigations received Ms. Yetter's request, we cannot determine whether the Cabinet complied with the initial three-day response period imposed by KRS 61.880(1).
2 The Courier-Journal has not attempted to rebut this argument.