A less than reassuring look at how state law restricts the public's ability to identify companies that hold toxic chemicals and hazardous substances that may pose a threat to public safety.
The Cincinnati Enquirer's efforts to obtain the names and locations of the companies through an open records request — the article does not specifically indicate to what agency the request was directed, but it appears to have been the Northern Kentucky Emergency Planning Committee— were unsuccessful.
The agency denied The Enquirer's request based on an exception to the open records law enacted in 2005 in response to the events of 9-11. Lawmakers immediately recognized that Kentucky's law contained no "anti-terrorism or homeland security" exception.
Over the course of several years stakeholders met to hammer out acceptable statutory language that did not lend its self to abuse or overuse, finally arriving at acceptable language in 2005. Lawmakers even had the foresight to enact a corresponding open meetings exception to avoid legal challenges to closed session discussions of records protected under the new exception.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156
What was enacted in 2005 — KRS 61.878(1)(m) — is, hands down, the longest and most cumbersome exception. It requires a public agency invoking it to demonstrate that disclosure of the requested records "would have a *reasonable likelihood* of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act."
The exception goes on to limit application to eight categories of records (KRS 61.878(1)(m)a. - h.) including records "that describe the exact physical location of hazardous chemicals, radiological, or biological material."
And it defines "terrorist act," in part, as "a criminal act intended to . . . intimidate or coerce a public agency or all or part of the civilian population."
An agency invoking it to deny a request must provide the Kentucky attorney general and the Kentucky Office of Homeland Security with a copy — a requirement that was abandoned for all other public agency denials in the early 1990s.
The new exception was immediately tested in the Fletcher administration, first in a case involving a request for records documenting costs incurred, and trooper assigned in protecting, former Vice President Dick Chaney after he flew into Kentucky on his way to an Indiana fundraiser.
The second test case involved a request for fuel receipts signed by members of then Governor Fletcher's security detail.
The courts concluded in both cases that there was no "reasonable likelihood" of threatening the public safety by disclosure of these records. This phrase was the lynchpin on which the analysis turned.
The strong message that the new exception would be "strictly construed" was critical in curbing future abuse.
The exception is cited on an irregular basis — often in cases involving infrastructure records such as information technology, communications, electrical, fire suppression, ventilation, water, and gas systems — with mixed results.
The attached article suggests that the exception can be invoked to deny access to records where there is "a chance it could threaten public safety."
Given the exception's history, it's clear that something more than "a chance" must be demonstrated. But given the nature of the records at issue, it is conceivable that an agency could make the case.
The agency would, however, be required to demonstrate a "reasonable likelihood" that disclosure of records identifying the sites where toxic chemicals and hazardous substances are held threatens the public safety — and not just a "chance."
