Request By:
Sarah O. Hernandez, Esq.
Office of General Counsel
Natural Resources and Environmental
Protection Cabinet
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ronald R. Van Stockum, Jr., Esq. has appealed to the Attorney General pursuant to KRS 61.880 the denial by the Division of Air Pollution Control, within your Cabinet, of the request by his client to inspect certain records in the Division's custody. Mr. Van Stockum described the material in question as all information regarding the proposed Union Carbide (Unison) PCB removal plant in Henderson, Kentucky, particularly the identity of TF-1 and the processes in which TF-1 will be used. In his letter of appeal to this Office he requests that we review your Cabinet's denial of his client's request for information regarding the identity of TF-1 and the process in which TF-1 will be used by Union Carbide (Unison) at the proposed PCB removal plant in Henderson, Kentucky.
Mr. Van Stockum states that his client's request to inspect the documents in question was presented to the Division of Air Pollution Control on November 13, 1985. What that Division said or wrote relative to the request to inspect from that time until we received your letter dated December 12, 1985, we cannot say as your letter is the first communication we have received from the Division or Cabinet relative to this particular request to inspect records.
Your letter of December 12, 1985, which we did not receive until December 18, 1985, stated that requests to inspect records relative to the air pollution construction permit application information submitted by Unison Transformer Services, Inc. had been received by the Cabinet. Portions of the permit application have been made available. You maintain, however, that certain business information submitted in connection with the air construction permit is confidential and you cite KRS 224.035. You further rely upon KRS 61.878(1)(b)(c) and (j) to support the Cabinet's denial of the information requested. The Cabinet has designated that information which constitutes a trade secret, as submitted by Unison, as confidential business information.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880 (1) and (2). Those provisions require in part that a public agency, upon a request to inspect public records, shall determine within three days (exception Saturdays, Sundays and legal holidays) after the receipt of such a request, whether to comply with the request and shall notify in writing the person making the request within the three day period, of its decision. Furthermore, a copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General.
The Cabinet and its Division of Air Pollution Control have not, in this particular situation, complied with the requirements of KRS 61.880(1) and (2).
KRS 224.035 provides in part as follows:
"Any record or other information furnished to or obtained by the Cabinet shall be open to reasonable public inspection except that any record or information, not relating to emission or effluent data, which constitutes a trade secret and is designated as such by the Cabinet, upon a satisfactory showing by the owner or operator in accordance with the rules and regulations of the Cabinet shall be confidential and for the use only of the Cabinet and other departments, agencies and officers of the Commonwealth in the performance of their duties . . . ." (Emphasis supplied).
You have stated that the records pertaining to TF-1 and its components and uses constitute trade secrets and have been so designated by the Cabinet pursuant to the Cabinet's rules and regulations. In view of the designation of the records in question by the Cabinet pursuant to the statutory authority set forth in KRS 224.035, and on the assumption that the Cabinet's rules and regulations have been complied with, that exemption to public inspection set forth in KRS 61.878 (1)(j) is applicable. That exemption provides that among the public records excluded from public inspection, in the absence of a court order to the contrary, are, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In addition to the statutory provisions already cited, KRS 61.878(1)(b) and (c) exclude the following public records from public inspection in the absence of a court order to the contrary:
"(b) Records confidentially disclosed to an agency and compiled and maintained for scientific research, in conjunction with an application for a loan, the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential, or for the grant or review of a license to do business and if openly disclosed would permit an unfair advantage to competitors of the subject enterprise. This exemption shall not, however, apply to records the disclosure or publication of which is directed by other statute."
"(c) Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. Provided, however, that this exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (b) above."
Thus, although the public agency has not complied with the requirements of KRS 61.880(1) and (2), it is the opinion of the Attorney General that the public agency's denial of the request to inspect materials relative to the components and uses of a compound called TF-1, matters which have been designated as trade secrets under the public agency's rules and regulations, was proper pursuant to KRS 61.878(1)(b), (c) and (j) of the Open Records Act and KRS 224.035.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Van Stockum, who has the right to challenge it in circuit court pursuant to KRS 61.880 (5).
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