Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Housing, Buildings and Construction ("Department") violated the Open Records Act in its disposition of Mike Martindale's request dated November 9, 2016, for copies of "all emails from Tim Crick and Roger Banks regarding Mike Martindale + TRADETECH from 8-1-15 thru current." For the reasons that follow, we do not find a substantive violation of the Act.
Mr. Martindale, a former Department employee, is currently involved in a proceeding before the Executive Branch Ethics Commission, with which the Department is cooperating. In its initial response dated November 30, 2016, 1 the Department withheld certain e-mails on the basis of KRS 61.878(1)(h) as "information that was compiled in the process of an administrative adjudication, until the enforcement action is complete, or a decision is made to take no action." Additionally, the Department stated:
Furthermore, since this investigation is in cooperation with the Ethics Commission, some of the emails that have been withheld are not subject to Open Records request based on KRS 61.878(1)(l) because the emails are restricted by another statute. Under KRS 11A.080(2), "all commission proceedings and records relating to a preliminary investigation shall be confidential until a final determination is made." ? Since the Department is working in cooperation with the Ethics Commission, the Department is bound by the same confidentiality requirement under KRS 11A.080(2).
Mr. Martindale initiated this appeal on May 22, 2017.
On February 6, 2017, Hearing Officer James L. Dickinson granted the Ethics Commission's motion that three e-mail documents related to its investigation "be considered privileged documents and not subject to disclosure, " and certain other e-mails be disclosed to Mr. Martindale. In a response to this appeal submitted on May 25, 2017, David R. Startsman, counsel for the Department, advised as follows:
At this time, the only records not provided to Mr. Martindale are those currently being held by Hearing Officer James Dickinson? Due to this pending administrative action, the Department is legally constrained from providing Mr. Martindale certain emails.
?
?
The Department has provided all the emails that the Department is legally able to provide to Mr. Martindale. The Department is not aware of any other emails concerning Mike Martindale and Tradetech from Tim Crick, Roger Banks, and Tim House in the Department's possession.
(E-mail addresses omitted.)
KRS 11A.080(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 2 provides as follows:
All commission proceedings and records relating to a preliminary investigation shall be confidential until a final determination is made by the commission , except:
(a) The commission may turn over to the Attorney General, the United States Attorney, or the commonwealth's attorney of the jurisdiction in which the offense allegedly occurred, evidence which may be used in criminal proceedings or, at its discretion, may at any time turn over to the Personnel Board, the Auditor of Public Accounts, or any other agency with jurisdiction to review, audit, or investigate the alleged offense, evidence which may be used by those agencies for investigative purposes;
(b) If the alleged violator publicly discloses the existence of a preliminary investigation, the commission may publicly confirm the existence of the inquiry and, in its discretion, make public any documents which were issued to either party;
(c) If the matter being investigated was referred to the commission from another state agency, the commission may inform the referring state agency of the status of any preliminary investigation and of any action taken on the matter.
(Emphasis added.) The disclosure of records relating to the Ethics Commission's investigation, except as provided in KRS 11A.080(2), requires "a final determination resulting from an adjudicatory proceeding governed by KRS 11A.100." 02-ORD-44. At this point, there has been no such final determination, as the adjudicatory proceeding is still ongoing.
In 94-ORD-81, the Office of the Auditor of Public Accounts argued that it was bound by the confidentiality provision of KRS 11A.080(2) because it was "acting in cooperation with the Executive Branch Ethics Commission in an investigation." We rejected that argument because "at the time of [the open records] request, the Auditor's office was acting independently, and was therefore not so bound." The present appeal is distinguishable from 94-ORD-81, however, in that the Department of Housing, Buildings and Construction was acting in cooperation with the Ethics Commission at the time of Mr. Martindale's request. As such, we find that the Department in this instance was bound by KRS 11A.080(2) and has lawfully withheld those e-mails designated as privileged by the hearing officer in the Ethics Commission proceeding.
Since KRS 11A.080(2) and KRS 61.878(1)(l) are dispositive of the issues in this appeal, we need not reach the Department's argument under KRS 61.878(1)(h). Accordingly, we find no substantive violation of the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes