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 Department of Alcoholic Beverage Control ("ABC") violated the Open Records Act in the disposition of Kristina Goetz's February 3, 2015, request to inspect and copy "[a]ll complaints filed with the ABC board from Jan. 1, 2010 to this date." For the reasons stated below, we find no substantive violation of the Act in ABC's ultimate disposition.
ABC's original response was dated February 5, 2015, and signed by Staff Assistant Holly Mullins. She offered to provide the records, but stated that "[t]he Department lacks adequate human resources to ? mail those copies to you today" because the records "involve different locations depending on the age of the complaint," but Ms. Mullins gave no date certain by which the records would be made available, as required by KRS 61.872(5). The Department on appeal admits this deficiency; thus, we find that a procedural violation was committed at this stage.
In subsequent correspondence by e-mail, Ms. Mullins indicated she could only provide a total number of complaints per year. Ms. Goetz made it clear that she was seeking the actual complaints. Ms. Mullins, who had only recently been hired into the position of Public Information Officer, stated her belief, at that time, that there were no records of the complaints themselves which could be provided for review. This belief, as the Department later ascertained, was erroneous. Ms. Goetz initiated an appeal to the Attorney General on February 23, 2015.
ABC's General Counsel, Stephen B. Humphress, issued a comprehensive response to the appeal on March 11, 2015, with a follow-up letter dated March 25, 2015. He explained the confusion on Ms. Mullins' part and provided a more accurate and detailed explanation of the agency's position:
The Department no longer has written complaint forms. Rather, information is digitally inputted and stored in data fields by computer.
?
The new electronic system was put into place on July 1, 2014. Therefore Ms. Goetz's request covers both the old paper complaint process and new digital complaint process. Upon further inquiry, the Department has learned that old paper complaints do exist. The Department's normal record retention policy for paper complaints is two (2) years. However the Department has lacked adequate human resources to go through and purge old records beyond the two (2) year period. Owing to that, the Department has located records of paper complaints from January of 2010 to June of 2014.
In preparing this response and exploring the system for ways to make digital complaint data available, it was discovered that IT personnel had built a feature into the system to generate a document that resembled the old replaced complaint form. This computer feature was written so that blank spaces on a stored electronic form are filled with data from respective digital complaint data fields and generated. The initial planning of the digital complaint system and its features began five (5) years ago in 2010. Because of the lapse of time from initial planning and the success of the digital review computer screens, this system feature was forgotten and has not been needed until now.
The Department has records of 2,274 paper complaints for the period from January 1, 2010, to June 30, 2014. From July 2014 to February 3, 2015, there have been 558 digital complaints for which the Department can print a respective form document of each.
Mr. Humphress went on to explain ABC's legal basis for making redactions to the records:
The Department is a law enforcement agency with full police powers. See , KRS 241.090. Violations of the alcoholic beverage laws are both civil administrative violations subjecting licensees to license revocation or suspension in administrative actions, ( See , KRS 243.490(1)), and criminal violations subjecting a person to criminal prosecution. (See, KRS 243.990 , KRS 244.990.)
KRS 61.878(1)(h) provides in pertinent part that the following public records are excluded from the application of KRS 61.870 to 61.884:
The Department's complaints are records of law enforcement agencies AND agencies involved in administrative adjudication that are compiled in the process of detecting and investigating statutory or regulatory violations. The Department will make all closed complaints available for inspection by Ms. Goetz since there is no "prospective" law enforcement or administrative action contemplated (or such actions has [sic] already been concluded) so that the KRS 61.878(1)(h) exception does not apply.
The Department has determined that there are currently 143 open digital complaints and 192 open written complaints (for a total of 335 open complaints). The Department is currently reviewing the open complaints to determine whether the premature release of information in each respective complaint would harm the Department's prospective law enforcement actions or administrative actions so as to require an exception under KRS 61.878(1)(h).
(Emphasis in original.) With regard to both open and closed complaints, the Department gave notice that it might rely upon the attorney-client privilege pursuant to KRS 61.878(1)(l).
Furthermore, as to both open and closed complaints, ABC explained its rationale for redacting the names of complainants. Since the details are relevant to our analysis, we quote the Department's argument at length:
KRS 61.878(1)(a) provides in pertinent part that public records may be excluded from open records requirements if they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. See also, Kentucky Board of Examiners v. Courier-Journal, Ky., 826 S.W.2d 327 (1992) (balancing test).
KRS 61.878(1)(h) provides in pertinent part that the Department's complaints (compiled in the process of detecting and investigating statutory or regulatory violations) may be excluded from open records requirements, "if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known...."
KRS 61.878(1)(l) provides that public records may be excluded from open records requirements if disclosure is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 17.150(1) requires the Department to maintain records for reporting crime data. Although KRS 17.150(2) generally provides that intelligence and investigative reports are "subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose: (a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant ;" (emphasis added).
Some persons who contact the Department are only willing to report alleged violations on the condition that they remain anonymous. An example is a conscience employee who reports a violation by his or her employer. The employee wishes to remain anonymous for fear of reprisal or of losing his or her job if the employer learned that the employee reported [t]he violation. Many confidential informants give no name at all and complaints simply state "anonymous. " However, some confidential informants have evidence or information for Department investigators and provide their name confidentially so that the investigators can contact them for more information. The magnitude of the informant's privacy expectation is great since the informant provided information only ON THE CONDITION of his or her identity 1 not being revealed. The public interest is already served by the non-redacted part of the complaint which will show what the Department did with the information. As such, informants' privacy interests outweigh any public interest in their identities.
Furthermore, if employers learned of a confidential informant's identity in an open case, it would harm any prospective enforcement action as the employer could threaten an employee or witness, limit access to needed evidence, etc., resulting in the Department's loss of cooperation, evidence, testimony or information. Both the KRS 17.150(2) and KRS 61.878(1)(h) exceptions specifically apply to closed cases. Even in closed cases, employers could punish anonymous employees if the Department was required to reveal an employee's identity. Confidential informants are sometimes other industry members. A penalized licensee could refuse to buy or sell to that industry informant and have damaged business relationships if their identity is revealed. The Department would also lose valuable future information because an informant whose identity is revealed would no longer be willing [to] assist the Department with information.
It would harm the Department's ability to perform its public protection duties if it was required to reveal the identity of confidential informants. Alcoholic beverages are a highly regulated industry which requires strict regulation. The legislature has delegated special powers to the Department necessary for the protection of the public interest. See, Alcoholic Beverage Control Bd. v. Woosley, Ky., 367 S.W.2d 127, 128 (1963); Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 S.W.2d 735 (1946). It is for this reason that the Department is an agency in the Public Protection Cabinet.
In performing its public protection duties, the Department relies heavily on complaints from the public. Although the alcoholic beverage industry is highly regulated, the Department currently only has twenty-four (24) enforcement field investigators to regulate over 9,000 different licensees located throughout the state. Complaints by the public operate as additional "eyes and ears" and allow the Department to adequately protect the public and effectively regulate licensees despite its small size. For this reason, the Department honors its promise to informants to keep their identities secret and has a long history and reputation of doing so. This reputation encourages certain members of the public to report violations to the Department and allows the Department to fulfill its public protection mandate. The Department's ability to fulfill this mandate would be harmed if the Department was required to reveal the identity of confidential informants.
On March 25, 2015, Mr. Humphress reported that ABC had completed its redactions and "determined to make all complaint records available for inspection and only redact categories of exempt information." Those redactions were as follows:
For both open and closed cases, the Department has redacted personal information such as social security numbers, personal addresses, tax identification numbers, dates of birth and driver's license numbers.
For both open and closed cases, the Department has redacted private information relating to the identification of all juveniles and minors pursuant to the [Kentucky New Era, Inc. v.] City of Hopkinsville [, 415 S.W.3d 76 (Ky. 2013)] holding.
For both open and closed cases, the Department has redacted information relating to the identity of a complainant who wished to remain anonymous for reasons stated in the Department's original response. Additional authority for this claimed exemption category is the Attorney General's determination that a complainant's information could be permissibly withheld if the complainant requested anonymity. See , 12-ORD-149 (discussing 99-ORD-193 and 07-ORD-199).
For open cases, the Department has redacted certain categories of information pursuant to KRS 61.878(1)(h). Due to the volume of records, the Department does not assert exemptions of a document-by-document basis but below explains how the release of these asserted exempt categories of information would harm the agency in a prospective law enforcement action. The Department is guided in this determination by City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). There the Kentucky Supreme Court said it does not require an agency:
The Court went on to suggest that it is acceptable to identify a generic risk to justify a categorical exclusion. Id . The Department strives to exceed that requirement by identifying multiple or specific risks whenever it is practicable to do so, as the nature of a category or the circumstances that typically surround it may warrant.
The Department also finds reliance in KRS 17.150. The Attorney General recently interpreted this statute in 14-ORD-228 as operating independently of the KRS 61.878(1)(h) exemption and as not requiring a showing of harm beyond the requirement that the law enforcement agency give a specific reason for withholding the information.
Pursuant to KRS 61.878(1)(h) and KRS 17.150, the Department also has redacted the following information from open complaints: the assigned investigator's name, the alleged violator's name and contact information, the complainant's name and contact information, and investigative information. Here, investigative means information received or gathered in anticipation or during a Department inquiry into the subject matter of an external or internal complaint about a potential violation of law. Investigative information includes allegations which would identify: an individual or business by name, the involvement of another law enforcement agency, or any future action that may be taken. These categories of information are part of an open and ongoing investigation and relate to prospective investigation in which prosecution has not been declined.
If an investigation reveals violations of law, the Department will initiate an administrative case against a licensee and regularly initiates a corresponding criminal case against a person. Licensees ordinarily do not know that they are being investigated for violations. Premature release of the identified categories of information would substantially hinder the Department's law enforcement and administrative efforts. The premature release of information relating to an open case would confound the integrity of the investigation, compromise the confidentiality essential to any law enforcement inquiry, put investigators at risk of harm or retaliation, subject witnesses to danger or intimidation, invite interference by business owners or their competitors, invite evidence tampering or concealment, and diminish the public's confidence in the integrity of the very process. If such information is not redacted, troublesome licensees or criminals could make weekly open record requests, or be tipped off by others (inadvertently or intentionally), and learn that they are [the] subject of an investigation so as to undermine the investigation and the Department in the performance of its statutory duties. Again, administrative and/or criminal prosecution has not been declined and investigations remain active and on-going for open cases.
Mr. Humphress stated that the responsive records consist of 4,060 pages and ABC will make them available for inspection or will provide copies at 10 cents per page.
Categorical redactions based on privacy
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink , the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." 902 S.W.2d at 829.
In Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id . On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era , the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87.
The Court in Kentucky New Era determined that the City of Hopkinsville's redaction policy could be
referred to as a "categorical" one. The City has determined with respect to a particular, recurring class of information -- information identifying private citizens in its police reports -- the privacy/ public-interest balancing so characteristically tips in one direction -- privacy -- that it is appropriate to withhold, categorically, information in that class."
Id. at 88. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, " the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. With regard to the types of information at issue in Kentucky New Era , the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id . Therefore, the categorical redaction of this identifying information was upheld.
We find nothing to distinguish the redactions of personal information in this case from the result in Kentucky New Era . Cf. 14-ORD-123 (affirming the categorical redaction of home addresses and birth dates of private individuals from records pertaining to a certain dog in the care of Louisville Metro Animal Services). Social security numbers, personal addresses, tax identification numbers, dates of birth, and driver's license numbers of private individuals, and specific identities of minors and juveniles, have no manifest bearing on how ABC performed its public duties, and therefore this information was properly subjected to categorical redaction from both open and closed complaints under KRS 61.878(1)(a).
Redactions on law enforcement grounds
As to the identities of complainants who wish to remain anonymous, which have been redacted from both open and closed complaints, we find that ABC has made an adequate showing under KRS 61.878(1)(h) and KRS 17.150 that these individuals represent a class of confidential informants or "informants not otherwise known." Further, the disclosure of their identities would likely harm the agency, not only in individual cases, but in its long-term effectiveness, given its reported reputation for maintaining the confidentiality of those complainants who request anonymity and the potential negative consequences if that anonymity were compromised. Since we find KRS 61.878(1)(h) and KRS 17.150 dispositive as to this category of redactions, we do not consider it necessary to address the privacy argument under KRS 61.878(1)(a).
We likewise find that ABC has established a sufficient basis under KRS 61.878(1)(h) and KRS 17.150 for redacting "the assigned investigator's name, the alleged violator's name and contact information, the complainant's name and contact information, and investigative information" from open and active investigations. It is not difficult, particularly in light of the agency's description, to discern the potential harm to an active investigation if these categories of information were released. Therefore, we find no violation of the Open Records Act in the redactions made by ABC. 2
Complaints for which no records were created
This appeal raises one further issue inasmuch as Ms. Mullins had indicated in her e-mail discussions with Ms. Goetz that if a complaint "is not deemed valid, then it is not transferred to an investigation." Ms. Goetz states that she wishes "to review all complaints filed with the state's department of Alcoholic Beverage Control, not simply the ones that were 'deemed valid' by the agency and therefore transferred for investigation." (Emphasis in original.)
In his March 11 letter, Mr. Humphress clarifies that this refers to telephone complaints which do not allege a violation of law; he advises that calls of this nature are not assigned to an investigator and no record of them is created. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. We find reasonable Mr. Humphress' explanation that it would be a waste of resources to generate a complaint for a telephone call that did not allege a violation of law. Accordingly, we find no violation of the Open Records Act in the ultimate disposition of Ms. Goetz's request, though we note the admitted procedural violation of KRS 61.872(5) in the agency's initial response.
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.
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Distributed to:
Ms. Kristina GoetzMs. Holly MullinsStephen B. Humphress, Esq.David A. Smith, Esq.
Footnotes
Footnotes