Request By:
Susan C. Bush, Director
Division of Waste Management
Natural Resources and Environmental Protection Cabinet
Frankfort Office Park
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of December 28, 1989, Lexington Herald-Leader staff writer Kit Wagar has appealed your denial, by letter of December 15, 1989, of his request dated December 12, 1989, to inspect a computer printout regarding enforcement actions taken by the Division of Waste Management within the last five years.
FINDINGS IN BRIEF
Although the Division of Waste Management promptly responded, in writing, to a request to inspect certain of its records, its blanket denial of inspection of a computer printout, which contained some information subject to public inspection, and some which could be properly withheld as "notes," was not consistent with Open Records provisions.
FACTUAL BACKGROUND
By letter of December 12, 1989, Kit Wagar, a staff writer for the Lexington Herald-Leader Co., asked that he be furnished a computer printout of all enforcement actions taken by the Division of Waste Management for the last five years.
The letter indicated that the request was "to include any action initiated in the last five years and any ongoing action, regardless of when it was initiated. "
Specifically the request sought, if possible:
Company name; Location, by county, of violation; Type of violation (e.g., unlawful discharge, excess emission) Date of citation or other action; Type of action taken.
By letter of December 15, 1989, you advised Mr. Wagar that the computer printout he had requested was denied pursuant to KRS 61.878(1)(f). You explained that the records requested were compiled in the process of detecting and investigating regulatory violations. Disclosure of such information, you indicated, would harm the agency insofar as such information will be used in a law enforcement or administrative adjudication.
Mr. Wagar's appeal to this office followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, the Division of Waste Management promptly responded, in writing, to a request for records of the agency. In declining to supply the record sought (taken as technically meaning inspection of such record) you cited a specific exception among those in Open Records provisions, and provided a brief explanation of how the exception cited applied to the record(s) withheld. These actions were consistent with Open Records provisions.
Your denial was a blanket one. It denied inspection, in the entirety, of a printout of the character sought, which does exist, and which contains a number of information elements or data fields, which are subject to public disclosure (case name, type, location, etc.).
On January 26, 1990, the undersigned reviewed the printout in question at the Division's office. The printout consisted of about five hundred pages, and was understood to report regarding about 645 cases. It appeared from a review of the printout format, and the various information "fields" contained therein, that perhaps only one information field - a field for "comments" - contained on perhaps each page (or at least in relation to each case) of the various pages of the printout, was of a character that might be properly withheld from inspection. In that case, inspection of the comments field(s) of the printout could be withheld as "notes" within the meaning of KRS 61.878(1)(g).
Aside from the comments or "notes" contained upon the printout, the remaining information elements appear to contain at least those information elements sought by Mr. Wagar.
Pursuant to KRS 61.878(4), if a public record contains some material which is excepted from inspection pursuant to KRS 61.878, and some material which is not, the public agency is to separate the excepted material, and make non-excepted material available for inspection.
While the printout in question is voluminous, the agency must either mask the "comments" or "notes" sections of such printout, and supply for inspection a copy of the printout made from the masked printout, or supply for inspection, a copy of the printout from which the comments sections have been deleted by programming techniques. Any additional information withheld must be explained in terms consistent with KRS 61.880(1), i.e., the specific exception relied upon must be cited and a brief explanation must be provided regarding the application of the exception cited to the record or part thereof withheld from inspection.
In making a blanket denial of inspection of the printout in question, the Division of Waste Management failed to act consistent with Open Records provisions.
You should promptly arrange with Mr. Wagar for his inspection of the printout in question, or copy of a masked copy thereof, under the terms noted above.
Both the Division of Waste Management, and Mr. Kit Wagar, may have a right pursuant to KRS 61.880(5), to appeal the findings of this opinion.