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J. Guthrie True, Frankfort, Whitney True Lawson, Counsel for Appellant.
Nicole HouWen Pang, Frankfort, Counsel for Appellees Office of the Attorney General, and Jack Conway, in His Official Capacity as Attorney General of Kentucky.
Jon L. Fleischaker, Jeremy Stuart Rogers, Louisville, Counsel for Appellees The Courier-Journal, Inc.; Lexington Herald-Leader Co.; and The Associated Press.
Jeffrey C. Mando, Covington, Counsel for Amicus Curiae The Reporters Committee for Freedom of the Press, and E.W. Scripps Company.
In Beckham v. Board of Education of Jefferson Co., 873 S.W.2d 575 (Ky.1994), we held that the Kentucky Open Records Act (KRS 61.870 to 61.884, the " ORA" or the " Act" ) provides a cause of action whereby an affected individual may seek to preclude the disclosure of public records pertaining to him or her. Having had little occasion since Beckham to address such reverse-ORA actions, we granted Appellant Leonard Lawson's motion for discretionary review to consider his claim that the Court of Appeals and the Franklin Circuit Court have misapplied Beckham and the ORA by refusing to enjoin the Attorney General from disclosing a statement— what the parties have referred to as a " proffer" of information or of evidence— Lawson gave to the Attorney General in 1983. The proffer pertains to Lawson's involvement in a scheme to " rig" bids for highway construction contracts with the Kentucky Department of Transportation.
Agreeing with the courts below that Lawson's 1983 statement may be disclosed, we affirm the Court of Appeals' decision.
The pertinent facts are not in dispute. Sometime prior to the late spring of 1983, federal authorities accused Lawson, as owner and chief executive officer of Mountain Enterprises, Inc., an asphalt company involved many times in highway construction projects, in Eastern Kentucky, of participating in unlawful bidding on state highway construction contracts. In June of that year Lawson pled guilty in federal court on behalf of the company to one count of violating the Sherman Antitrust Act, 15 U.S.C. § 8405. The company was ordered to pay a fine of $150,000.00, and Lawson agreed to cooperate with the on-going federal investigation.
As a result of the federal conviction, the company's privilege of bidding on new contracts with the Commonwealth of Kentucky was suspended. To have that privilege reinstated, in July 1983, the company, again through Lawson as its owner and chief executive officer, agreed with the Attorney General to pay $112,000.00 as restitution to the Kentucky Department of Transportation, and to cooperate with the Attorney General's investigation. Although formal litigation did not prompt this agreement, there was certainly the prospect of litigation, and the parties have joined in referring to the agreement as a " settlement." Pursuant to that settlement, in August 1983 Lawson was, in effect, deposed by the Attorney General or his agents, and it is that " proffer" of information that is the source of contention here.
Lawson having made his proffer, the matter came to rest, apparently, and stayed at rest for some twenty-five years, until September 2008, when a federal grand jury indicted him, among others, on charges of conspiring to obtain confidential cost estimates for Kentucky highway construction contracts. A jury ultimately (in January 2010) acquitted Lawson of those charges, but not before the federal prosecutor had, prior to trial, moved to be allowed to introduce the 1983 proffer as evidence. The trial court denied that motion, but the motion alerted reporters covering the trial to the proffer's existence. In June 2009 a reporter for the Courier-Journal, a newspaper with offices in Louisville and statewide circulation, submitted an Open Records Act request to the Attorney General to have the proffer disclosed. Soon thereafter reporters for the Lexington Herald-Leader, another Kentucky newspaper with state-wide distribution, and the Associated Press, the national reporting service, made similar ORA requests. When the Attorney General informed Lawson that he intended to release the proffer, Lawson, seeking to have the release enjoined, brought the present action in the Franklin Circuit Court against the Attorney General and the ORA requestors.
Since then the litigation has had a somewhat lengthy history, including a prior visit to this Court: Courier-Journal v. Lawson, 307 S.W.3d 617 (Ky.2010). For present purposes, however, the pertinent procedural history begins with the trial court's January 3, 2011 Order denying Lawson's request for a permanent injunction and ruling that the proffer was to be released to the ORA requestors. By that point, Lawson offered two arguments
against disclosure: (1) disclosure of the then twenty-six year old proffer would constitute a clearly unwarranted invasion of personal privacy, in violation of KRS 61.878(1)(a); and (2) disclosure would violate the KRS 61.878(1)(h) blanket ORA exemption for prosecutorial files. Rejecting these arguments, the trial court opined that by entering the settlement agreement Lawson had " bartered away" his privacy interests so as to take the privacy exemption out of play, and opined further that, Lawson having thus waived his privacy rights, release of the proffer could not be deemed an " injury" for the purpose of establishing Lawson's standing to invoke KRS 61.878(1)(h). Concluding thus that neither statutory provision offered Lawson the protection he sought, the trial court ruled that the general disclosure provisions of the ORA applied and that the proffer must therefore be disclosed. Denying, three weeks later, Lawson's CR 59.05 motion to alter, amend, or vacate its Judgment, the trial court reiterated its prior reasoning and in addition noted expressly that in its view the age of the proffer had no effect on the merits of the case.
Lawson then appealed the trial court's Judgment to the Court of Appeals, which, in a divided Opinion, affirmed. The panel's majority declined to address Lawson's contention that he had not waived his privacy rights, because in the majority's view, even if the trial court's waiver theory was not valid, Lawson's privacy interests were de minimus and did not preclude disclosure. The majority reviewed the proffer in camera and concluded that it did not contain the sort of sensitive personal information which, in the majority's view, the privacy exemption was meant to protect, and thus, notwithstanding the proffer's age, the public interest in disclosure outweighed Lawson's miniscule interest in privacy. The dissenting judge was concerned that the majority had overstepped its authority. In his view, the trial court's waiver theory was clearly wrong, requiring that the privacy question be remanded to the trial court for reassessment under the appropriate " unwarranted invasion of personal privacy" standard.
With respect to Lawson's invocation of the law enforcement exemption, KRS 61.878(1)(h), the panel again rejected the trial court's reasoning, but affirmed the result. The same majority as above opined that even if Lawson had standing to invoke the (1)(h) exemption, that exemption applies only to disclosures likely to harm the agency, and since Lawson failed to allege any such harm to the agency, as opposed to the alleged harm to himself, his (1)(h) claim was properly rejected. Also concurring in the result, the third panel member was of the view that the (1)(h) exemption did not apply to records of the
Attorney General because the Attorney General's Office could not be characterized as a " law enforcement agency."
Lawson takes issue with all of the opinions generated in the trial court and the Court of Appeals as either incorrect or as not responsive to his claims. He insists that he did not, either by agreeing to speak to the Attorney General or by agreeing to testify in court, if need be, with regard to the alleged unlawful bidding activity of the early 1980s, waive his interest as a private citizen in the confidentiality of his proffer. He further insists that he has a substantial privacy interest in government records, particularly law-enforcement records, identifiably about him, and that his interest far outweighs any de minimus public interest more than two-and-a-half decades later.
As to exemption (1)(h), Lawson notes that that provision applies to prosecutorial files even without a showing of harm to the prosecutor. It is that blanket prosecutorial exemption he claims a right to invoke, not the harm-based exemption for law-enforcement records generally. The blanket prosecutorial exemption applies, Lawson contends, because the Attorney General in this instance was acting in his prosecutorial capacity. While Lawson's contentions are not without some merit, forcing us to reason differently than either court below, we nevertheless arrive at the same bottom line they did— disclosure. To explain that conclusion, we begin our analysis with Lawson's claim under KRS 61.878(1)(h), the law enforcement exemption, and then address what we regard as his more substantial claim under the privacy exemption.
I. Lawson Does Not Have Standing To Invoke KRS ...