Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Office of the Estill County Attorney ("County Attorney" ) violated the Open Records Act in its disposition of Hon. Ryan Rudich's request for records relating to a retention agreement between the Estill County Fiscal Court/Office of Estill County and an outside law firm. For the reasons stated below, we find that the County Attorney did not violate the Act in refusing to provide the records.
By letter dated February 15, 2017, Mr. Rudich requested: "All records related to any retention agreement or other contract or agreement between Estill County and Smith Stag, LLC." 1 The County Attorney denied the request by letter dated February 28, 2017, and explained the denial:
The information you have requested is excluded from production pursuant to KRS [61.878(1)(h)] . The Estill County Fiscal Court and the Office of the Estill County Attorney are conducting an investigation, both administrative and criminal, related to the conduct of various parties at the Blue Ridge Landfill. The information you have requested is subject to that investigation. Once the investigation is complete and the matter adjudicated this request may be resent for consideration.
Mr. Rudich appealed this response by letter dated August 15, 2017, and argued that "KRS 61.878(1)(h) provides an exception to the Open Records Law's disclosure requirement for '[r]ecords 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. '" Mr. Rudich opined that "KRS 61.878(1)(h) does not apply to a contract or agreement between a unit of government and a law firm. No such agreement could satisfy the exception's condition that disclosure of the record would 'reveal[] the identity of informants' or constitute 'release of information to be used in a prospective law enforcement action or administrative adjudication. '"
In response to the open records appeal, the County Attorney explained that the "Estill Fiscal Court and Advanced Disposal, et al., are engaged in litigation related to the illegal dumping and storage of TENORM at the landfill operated by Advanced Disposal in Estill County." 2 He stated that the matter is being investigated by the Estill Fiscal Court and the Estill County Attorney's Office from both an administrative and criminal standpoint. The County Attorney believed that releasing the records would put the County Fiscal Court and his office at a competitive disadvantage in the pending litigation and could impede the investigation and resolution of the pending claims against the defendants in the litigation.
Analysis . In pertinent part, KRS 61.878(1)(h) has two distinct parts that are at issue in this appeal. The first part of the statute, which has been cited by Mr. Rudich as being insufficient to support the denial of his request, is commonly referred to as the "investigatory exemption" and states:
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 statute continues, and addresses separately the exemption for records of county attorneys and Commonwealth Attorneys. This portion is commonly referred to as the "prosecutor's exemption" and states:
. . . however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
We cite to a prior decision of this office, 16-ORD-037, to explain the basis of the "prosecutor's exemption" :
In relevant part, KRS 61.878(1)(h) provides that "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." This office has consistently recognized that in amending KRS 61.878(1)(h) in 1992, the General Assembly "clearly intended to afford permanent protection to the records of the [county and] Commonwealth's attorney which relate to criminal investigations or criminal litigation." 93-ORD-137, p. 2. In other words," the Attorney General concluded, "these records are forever exempt from public inspection under the Open Records Law." Id.; see also 96-ORD-77, p. 2 ("No matter what the stage or status of the proceedings, the [county and] and Commonwealth's attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection" ); 11-ORD-005; 14-ORD-069.
The Kentucky Supreme Court has reaffirmed this position. Contrasting the criminal litigation files of county and Commonwealth's attorneys with criminal files in the custody of law enforcement agencies, in City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Court emphasized that "the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act . . . by singling them out" in KRS 61.878(1)(h) . The Court "reiterate[d] that county attorney and Commonwealth's attorneys' files are treated differently after the 1992 amendment" to KRS 61.878(1)(h). Id. at 857. Four months later the Supreme Court revisited KRS 61.878(1)(h), recognizing that, "The General Assembly enacted this portion of the statute in 1992, and by thus according blanket protection to the investigatory and prosecutorial files of county and Commonwealth's attorneys, relieved those agencies of the need to justify nondisclosure by a showing, otherwise required, that disclosure would harm the agency . . . ." Lawson v. Office of the Attorney General, 415 S.W.3d 59, 66 (Ky. 2013). The Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ." Id. at 69. Nevertheless, the Court observed, KRS 61.878(1)(h) "does not preclude [the county or Commonwealth's attorney] from allowing [disclosure] , assuming, of course, that no other exemption applies."
The records in dispute were compiled by the Commonwealth's Attorney and those records pertain to a criminal investigation or litigation. KRS 61.878(1)(h) affords the records protection from disclosure in perpetuity. Accordingly, the Commonwealth's Attorney did not violate the Open Records Act in ultimately denying the request on the basis of KRS 61.878(1)(h).
16-ORD-037, pp. 2-3.
In 17-ORD-012, the requester asked for emails from a county sheriff to the prosecutor's office 3 regarding a prosecutor assigned to the case. The requester believed that the emails were "tangential" to the criminal case since they were created during the criminal prosecution, but after the investigation. We determined that the record was exempt as a record maintained by the prosecutor that pertained to the criminal litigation. That same logic applies to the retention agreement between the Estill County Fiscal Court/Office of the Estill County Attorney and the outside law firm, as that agreement is a record maintained by the County Attorney 4 and pertains to the criminal litigation. As stated in Lawson v. Office of the Attorney General, 415 S.W.3d 59 (Ky. 2013), "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure . . . ." Id. at 69. The County Attorney's decision not to release the retention agreement is within the discretion of that office and is not a 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 proceeding.
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