Request By:
Mr. J. Rick Jones
Deputy General Counsel
Department for Natural Resources and Environmental Protection
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
The Courier Journal and Louisville Times Company, by their attorney, Jon L. Fleischaker, has appealed to the Attorney General under KRS 61.880, the denial of access to public records. The records are described as "survey forms returned by a particular industry who requested that their response be held confidential. "
With his letter of appeal Mr. Fleischaker sent a copy of the request and a blank copy of the 1976 Industrial Waste Survey form. The newspaper wants access to the forms returned and filled out by collectors, haulers and disposers of hazardous waste. We note that the cover letter which was sent with the survey form shows that response to the survey was voluntary rather than mandatory.
Since response to the survey was voluntary, we believe that the survey forms which were filled out and returned by handlers of hazardous waste are exempt from the requirements of the Open Records Law by KRS 61.878(1)(g), "Correspondence with Private Individuals."
KRS 224.890 mandates that a person must have a permit for collecting, hauling or disposing of hazardous waste. We believe that any information required for the obtaining of a permit would be a public record which would be subject to inspection, but since the document in question on this appeal was a voluntary response to a request for information, we believe that it comes under the classification of private correspondence.
You denied the inspection of the survey forms for another reason, namely, that they obtained trade secrets which were exempt under KRS 61.878(1)(b). Although said statute does not use the term "trade secrets" we believe you were correct in your denial of inspection. The statute exempts "records confidentially disclosed to an agency and compiled and maintained for scientific research in conjunction with the application for a loan, the regulation of commercial enterprise . . ."
The Department for Natural Resources and Environmental Protection was seeking information in sending out the survey forms. The form provided a check space for indicating if the responder wanted the information to be kept confidential.
It is the opinion of the Attorney General that you were correct in denying access to the records requested and we will so inform Mr. Fleischaker by sending a copy of this letter.