Request By:
Denis B. Fleming, Jr.
General Counsel
Cabinet for Economic Development
Capital Plaza Tower
Frankfort, Kentucky 40601W. M. "Buzz" Norris, Jr.
Daviess County Judge/Executive
Daviess County Courthouse
Owensboro, Kentucky 42301David C. Fowler
City Attorney
P.O. Box 847
Owensboro, Kentucky 42302
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel, Director, Civil and Environmental, Law Division
Ben Sheroan, City Editor of the Owensboro Messenger, has appealed to the Attorney General pursuant to KRS 61.880 your denials of his requests to inspect certain records related to financial incentives offered to Scott Paper Company, an industrial entity considering locating a facility in Daviess County, Kentucky.
By separate letters to David Adkisson, Mayor of Owensboro, and W. M. "Buzz" Norris, Daviess County Judge-Executive, Mr. Sheroan made open records requests for copies of the following documents:
1. The final incentive package concerning Scott Paper Company.
2. The special presentation prepared at Neel Advertising.
3. Any agreements or actions authorized directly or indirectly by the Owensboro City Commission or by the Daviess County Fiscal Court.
4. Final or preliminary communications made between "your office or that of your assistant" with any official of Scott Paper Company.
By a third letter to Gene C. Royalty, Secretary of the Cabinet for Economic Development, Mr. Sheroan made an open records request for copies of items 1, 2, and 4 listed above.
All three of you responded to Mr. Sheroan's letters by denying his open records requests. Mr. Fowler, responding on behalf of the City of Owensboro, denied Mr. Sheroan's request on the basis of KRS 61.872(3), indicating that "many of the incentives are the responsibility of the State and County" and that the city therefore is not "the appropriate agency through which the documents . . . should be disclosed." Mr. Fowler also denied Mr. Sheroan's request on the basis of KRS 61.878(1)(c) and (g), indicating that "premature disclosure of the particulars of the incentive package could conceivably jeopardize the project."
Mr. Norris, responding on behalf of Daviess County, denied Mr. Sheroan's request on the basis that "portions of the incentive package deal with matters that would not be subject to disclosure until Scott formally approves the building of the plant here in Daviess County" and that "disclosure of the particulars in the incentive package is premature and . . . could conceivably jeopardize this project."
Mr. Fleming, responding on behalf of the Cabinet for Economic Development, denied Mr. Sheroan's request on the basis that the requested records "constitute preliminary recommendations and/or preliminary inter-office or inter-agency memoranda or agreements, other than correspondence or documents which are intended to give notice of a final action of a public agency, " and therefore are exempt from disclosure pursuant to KRS 61.878(1)(g) and (h). Mr. Fleming further stated that "final action by the Commonwealth has not taken place in regard to placement and/or disbursement of incentives offered Scott Paper Company."
This appeal followed.
OPINION OF THE ATTORNEY GENERAL
Pursuant to Kentucky's Open Records Act (KRS 61.870 to 61.884):
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
KRS 61.880(1).
Daviess County failed to comply with this requirement, because its denial of Mr. Sheroan's request did not include a statement of the specific statutory exception authorizing the withholding of the records. In the future, any response to an open records request should include such a statement. For purposes of this Opinion, however, we will assume that Daviess County joins the City of Owensboro and the Cabinet for Economic Development in the statutory exceptions claimed by them as authorizing the withholding of these records.
The first statutory exception cited as authorizing the withholding of these records is KRS 61.872(3), which provides:
If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
Although this provision was cited by the City of Owensboro, the City did not state that it did not have custody or control of the requested records. Rather, the city stated that it was not the appropriate agency to disclose the documents. This statutory provision, however, does not authorize the city to refuse to disclose documents on that basis. Indeed, there is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. Accordingly, KRS 61.872(3) was not a proper basis for the City to use in withholding the requested records.
The second statutory exception cited as authorizing the withholding of these records is KRS 61.878(1)(c), which excludes from inspection (except upon order of a court):
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 . . . .
This exception does not apply in this situation, because Scott Paper Company's interest in locating in Kentucky had been disclosed prior to Mr. Sheroan's request for records. Accordingly, KRS 61.878(1)(c) was not a proper basis for withholding the requested records.
The remaining statutory exceptions cited as authorizing the withholding of these records are KRS 61.878(1)(g) and (h), which exclude from inspection (except upon order of a court):
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
We will examine each of the requests for documents in turn to determine if these exceptions authorize the withholding of the documents.
1. The Final Incentive Package
Mr. Sheroan's first request was for the "final incentive package. " It is our understanding that the extent of the action taken in this matter by the City of Owensboro and Daviess County has been to issue a Letter of Intent to Scott Paper Company. The Letter of Intent is not final agency action, because the "incentive package" is subject to negotiation and change until such time as final agreement is reached among the parties. Therefore, the Letter of Intent is a preliminary document that may be withheld from inspection pursuant to KRS 61.878(1)(g) and (h). At this time, there is no "final incentive package" for the City of Owensboro and Daviess County because no final agency action has been taken in this matter. Accordingly, the City of Owensboro and Daviess County were justified in withholding this document pursuant to KRS 61.878(1)(g) and (h).
The Cabinet for Economic Development, however, has taken some final agency action regarding this incentive package since Mr. Sheroan requested these records. It is our understanding that the Cabinet recently has submitted certain documents regarding this incentive package to the Secretary of the Finance and Administration Cabinet and to the Legislature for approval. The documents that have been so submitted constitute final agency action by the Cabinet for Economic Development and must be made available to Mr. Sheroan for inspection. Such documents are not preliminary documents and, accordingly, are not authorized to be withheld by KRS 61.878(1)(g) and (h).
2. The Special Presentation Prepared at Neel Advertising
Mr. Sheroan's second request was for the "special presentation prepared at Neel Advertising." It is our understanding that this presentation was prepared as part of the preliminary negotiations with Scott Paper Company. The presentation does not reflect final agency action and therefore is exempt from disclosure as a preliminary record pursuant to KRS 61.878(1)(h). This presentation will be subject to full disclosure only if it is incorporated into the final agency action. See Courier-Journal and Louisville Times Co. v. University of Kentucky , Ky. App., S.W.2d , 37 K.L.S. 15 (December 21, 1990).
3. Agreements or Actions Authorized by Owensboro City Commission or Daviess County Fiscal Court
Mr. Sheroan's third request was for "any agreements or actions authorized directly or indirectly" by the Owensboro City Commission or the Daviess County Fiscal Court. Any records regarding final agreements or actions authorized by the Owensboro City Commission or Daviess County Fiscal Court must be made available to Mr. Sheroan for inspection. Because Mr. Sheroan has not been very specific in this request, however, it is difficult to know if there are records that should be disclosed by the City or the County. As noted above, no final agency actions have been taken regarding the "final incentive package. " If Mr. Sheroan is referring to some other category of agreements or actions, he should clarify his request and you should respond to any such clarification.
4. Final or Preliminary Communications Between Your Agency and Any Official of Scott Paper Company
Mr. Sheroan's final request for records was for final or preliminary communications between your agency and any official of Scott Paper Company. Because no final agency action has been taken by the City of Owensboro or Daviess County regarding the incentive package, any correspondence regarding the incentive package between those agencies and officials of Scott Paper Company is preliminary and was properly excluded from disclosure pursuant to KRS 61.878(1)(g).
Mr. Sheroan argues that KRS 61.878(1)(g) does not apply in this situation because Scott Paper Company is not a private individual. We reject that argument. The correspondence requested by Mr. Sheroan was correspondence between a public agency and any official of Scott Paper Company. Any such official is a private individual; that status does not change merely because the individual is acting on behalf of Scott Paper Company. See , e.g. , OAG 83-79 and OAG 89-86.
Because the Cabinet for Economic Development has taken some final agency action in this matter, as discussed above, there may be final communications between the Cabinet and officials of Scott Paper Company. The Cabinet should review its correspondence and respond to Mr. Sheroan's request by: (1) allowing Mr. Sheroan to inspect the documents; (2) informing Mr. Sheroan of the reasons for withholding the documents from inspection; or (3) informing Mr. Sheroan that no such documents exist.
A copy of this Opinion is being sent to Mr. Sheroan, who requested it. Each of you may have the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.