Request By:
Honorable Paul V. Guagliardo
Assistant Director of Law
City of Louisville
Department of Law, Room 200
City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David H. Ashley, Assistant Attorney General
The Courier Journal and Louisville Times Company, by their attorney, Kimberly K. Greene, has appealed to the Attorney General under KRS 61.880 the denial of access to public records.
FINDINGS IN BRIEF
The city acted consistent with the Open Records provisions where it promptly responded in writing to the request for inspection of survey forms completed by businesses affected by the Standiford Field Expansion Plan at the request of the City of Louisville Economic Development Office. Acting consistently with the provisions of KRS 61.878(1)(a), the city denied the request as being "correspondence with private individuals" which is exempt from inspection.
By letter dated March 1, 1989, Mr. Ric Manning, of the Courier Journal, requested complete copies of completed survey forms distributed by the Office of Economic Development to businesses affected by the Standiford Field Expansion Plan. The request for copies of the forms was denied February 23, by Economic Development Director, Howard Gudell. By letter dated March 6, 1989, Mr. Paul V. Guagliardo, Assistant Director of Law, City of Louisville, denied the request pursuant to KRS 61.878(1)(a), (c), (g), and/or (h). The essence of the denial was, and is, that the public records contained information of a personal nature where the public disclosure thereof would constitute an unwarranted invasion of personal privacy under the provisions of KRS 61.878(1)(a). The city also based this denial under the provisions of KRS 61.878(1)(c), as the information sought to be obtained was exempted as being a portion of public records pertaining to a prospective location of a business or industry.
This office has been provided with a copy of the survey form. We might point out that return of the survey form was purely voluntary. The survey form, among other things, requested information from each business regarding its relocation decision, which matters include information as it might regard site requirements, special requirements which might be incurred with relocation as it might regard a specific site, toxic or hazardous material problems. The survey form also sought to elicit information from these businesses such as whether or not they intended to stay in business, and whether or not each business might or might not have any preference for locations for the prospective relocation.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, to issue a written opinion stating whether an agency ". . . acted consistent with the provisions of KRS 61.870 to 61.884".
The survey forms apparently were filled out with the assurance to the private businesses and individuals that the information would not be publicly disseminated. While there is no exception to the Open Records Law for promises of confidentiality, it is the position of this office that the information contained in the survey forms falls within the exemptions by virtue of the provisions of KRS 61.878(1)(g), which exempts correspondence with private individuals. See OAG 79-69. It is the opinion of this office that since the survey forms, and the return thereof, by private businesses and individuals, as opposed to governmental agencies, was purely voluntary that the exemptions provided by KRS 61.878(1)(a) are applicable. Additionally, disclosure of the information contained in the survey form, particularly whether a business intended to stay in business would certainly have an affect upon future sales.
While it can be argued that a business or corporation is not a person within the meaning of KRS 61.878(1)(a), this office has consistently held that the word "person" shall include all of the definitions provided by KRS 446.010(26) which includes "bodies politic and corporate, societies, communities, the public generally, individuals, partnerships and joint stock companies;".
We believe that much of the information contained in the survey forms, for example such as might be required for the issuance of specific permits, etc. might become a public record which would be subject to inspection. However, 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. OAG 79-69, supra.
It is the opinion of the Attorney General that the Department of Law, City of Louisville was correct in denying access to the records requested, and as required by law, we will so inform Ms. Greene by sending a copy of this letter.