At the heart of the Franklin Circuit Court's November 12 opinion and order in Cabinet for Economic Development v. The Courier Journal, Inc., is a principle that is nearly as old as the law itself.

In 1979, the Attorney General recognized:

"The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records."

Kentucky's law is a records access law and not an information access law.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750

This is the "technicality" that often frustrates requesters when they request a list from a public agency or when they frame their request as a question/request for information.

For example, a request for a list of the names of agency employees who attended an out of state conference or a list of the bidders for the local sidewalk maintenance project may be denied as a request for a nonexistent list. A request that asks which agency employees attended an out of state conference or which companies submitted bids on the sidewalk maintenance project may be denied as a request for information if no existing record contains narrative answers.

A request for documents identifying employees who attended the conference – for example, travel receipts – or documents identifying bidders for the local sidewalk maintenance project – for example, the bids themselves – is proper and will yield the same information but cannot be denied on a "technicality."

Because Kentucky's law is a records access law, agencies are not required to create records (lists, narrative responses to questions) to fulfill an open records request. The line between access to records and access to information has blurred considerably in the age of electronic recordkeeping and governmental databases, but the dichotomy is still recognized in some cases.

While the records/information dichotomy often works to the requester's disadvantage, it worked to the Courier Journal's advantage in Cabinet for Economic Development v. The Courier Journal.

https://cases.justia.com/kentucky/court-of-appeals/2019-2018-ca-001131-…

Anticipating that a request for a list of investors in Braidy Industries was likely to be denied as a request for a nonexistent record, the Courier Journal's "original ORA request specifically identified documents and not merely names."

In partially affirming the Franklin Circuit Court's original opinion in the case, the Court of Appeals indicated that it was "puzzled by the circuit court's apparent decision to prohibit the Cabinet from redacting the documents . . .to the extent that those documents included information beyond the name of Braidy's stockholders or investors."

The circuit court directly addressed the Court of Appeals' "puzzlement" in its November 12 opinion and order, attributing it to the circuit court's own " inartful explanation of the scope of [the] initial in camera review, and the scope of the original ORA request." The court emphasized that "[t]he original Open Records request did not seek merely the names of the investors, but the documents that included the names of the investors."

All other information in the four responsive documents that included the names of the investors was, absent statutory exceptions authorizing its nondisclosure, accessible to the Courier and to the public.

The Franklin Circuit Court found only one category of excepted information in three of the four documents that were responsive to the Courier's request.

The court affirmed the Cabinet's right to withhold the investors' home addresses from the voting agreement, the stock agreement, and the investors rights agreement under the privacy exception to the open records law.

It ordered disclosure of these documents with redactions, and the letter of intent in its entirety, painstakingly examining and rejecting each exception invoked by the Cabinet to shield all other information in the records from disclosure.

"[T]he substance of these documents," the circuit court opined, "is clearly relevant to the identities of the shareholders, in that the nature of the business agreement entered into on behalf of the taxpayers of the Commonwealth with those investors cannot be understood without public access to these four documents which set forth the rights of those investors (including Kentucky taxpayers) in this business."

It is absolutely solid legal reasoning.

In this case, the trap into which requesters often fall – and which the public agency would have happily sprung on the Courier if its reporter had requested a list of the names of the investors and not documents that included the names – "trapped" the agency resisting disclosure.

The bigger question now is: Who will pursue this litigation to block disclosure of the four responsive documents after Cabinet officials are removed and replaced in December? Governor-elect Andy Beshear's October 2017 open records decision confirms the Courier's, and the public's, right of access to these records.

https://ag.ky.gov/orom/2017/17ORD198.doc

Surely, departing Cabinet for Economic Development officials have better ways to expend their time in the waning days of the Bevin administration than initiating fruitless litigation in order to postpone the inevitable.