Request By:
Mr. Dwight D. Butt, President/CEO
Kentucky Fair & Exposition Center
P. O. Box 37130
Louisville, Kentucky 40233
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Kenneth J. Tuggle, a partner in the law firm of Brown, Todd & Heyburn, has appealed to the Attorney General's Office pursuant to KRS 61.880 your partial denial of his request to inspect various documents in your custody. By letter dated August 7, 1990, Mr. Tuggle requested access to:
. . . [A]ny document dated between January 1, 1980 and the present concerning one or more of the following topics, in whole or in part:
(1) the actual or proposed space leasing rates for the Kentucky Fair and Exposition Center (hereinafter "KFEC") and the Commonwealth Convention Center (hereinafter "CCC");
(2) the actual or proposed charges of KFEC and CCC for drayage, electrical, display labor and booth cleaning services at KFEC and CCC;
(3) any requirement that any lessee who leased space at KFEC and CCC also purchase drayage, electrical, display labor and booth cleaning services from KFEC and CCC;
(4) how leasing rates for KFEC and CCC would or did vary depending on whether a lessee agreed to purchase drayage, electrical, display labor or booth cleaning services from KFEC or CCC;
(5) any quotation given to any prospective lessee of KFEC and CCC, in which leasing rates varied depending on whether or not such lessee agreed to purchase drayage, electrical, display labor or booth cleaning services from KFEC and CCC;
(6) any quotation given to any prospective lessee of KFEC and CCC in which space concessions, preferential advance reservation of lease space, or other concession were offered or made in exchange for such lessee agreeing to purchase drayage, electrical, display labor and booth cleaning services from KFEC or CCC; and
(7) any concession offered to or received by any prospective lessee consisting of commercial leases, free parking privileges, or any other concessions in exchange for such lessee agreeing to purchase of drayage, electrical, display labor or booth cleaning services from KFEC or CCC.
Mr. John J. Mclaughlin, a partner in the law firm of Alagia, Day, Marshall, Mintmire & Chauvin, responded to Mr. Tuggle's request on behalf of the Kentucky State Fair Board on August 13, 1990. In his response, he agreed to make available for inspection the documents requested in paragraphs 1, 2, and 3 of Mr. Tuggle's letter. However, he denied inspection of the documents requested in paragraphs 4, 5, 6 and 7, stating:
To the extent any such documents exist, they would be preliminary analyses, drafts of agreements, or proposals to prospective tenants which have not yet been finalized or which are the subject of ongoing discussions or negotiations. They are, therefore, preliminary drafts, correspondence with private individuals and preliminary recommendations, as these terms are contemplated in KRS 61.878(1)(g) and (h).
On August 27, 1990, Mr. Tuggle submitted a second letter to the Fair Board, through Mr. McLaughlin, in which he asked that the Fair Board reconsider its position, noting "the scope of the request and the nature of the information sought suggests that [the Board's] objection is overly broad and misdirected." Having received no response to this request, Mr. Stephen V. DeBrota, an associate in Mr. Tuggle's firm, sent a third letter to the Fair Board, again through Mr. McLaughlin, on November 1, 1990. Some twenty-five days later, Mr. McLaughlin answered this letter, indicating that the Fair Board would "stand on [its] initial refusal on the grounds set forth in [its] initial response."
In his letter of appeal to this Office, Mr. Tuggle has expressed his belief that "the Board's stated reasons for refusing to release the documents [are] cursory, pretextual and unfounded." He has asked that we review your partial denial of his request to determined if it is consistent with the Open Records Law. For the reasons outlined below, we conclude that your partial denial was improper under that law.
OPINION OF THE ATTORNEY GENERAL
The Board cites two statutory exemptions in support of its partial denial of Mr. Tuggle's request. It is the Board's position that KRS 61.878(1)(g) and (h) authorize nondisclosure of all documents generated between January 1, 1980 and the present, which make reference to leasing rates, disparities in leasing rates contingent on the lessee's purchase of drayage, electrical, display labor and booth cleaning services, and concessions or preferences offered in exchange for the lessee's purchase of these services, with the exception of those identified in parts 1, 2, and 3 of Mr. Tuggle's request.
KRS 61.878(1)(g) and (h) provide:
The following public records . . . shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
(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 . . . .
These provisions have been interpreted to authorize nondisclosure of preliminary notes, preliminary drafts of letters, and preliminary reports and memoranda containing the opinions, observations and recommendations of personnel within the agency. OAG 86-5; OAG 86-26; OAG 86-32; OAG 86-58. With specific reference to subsection (g), we have stated that only those recommendations and memoranda that are strictly advisory, that is submitted for review and consideration by the agency relative to a final decision, but not incorporated into the final decision, are exempt. OAG 81-285; OAG 85-96; OAG 87-24. Both exemptions are intended to protect the integrity of an agency's internal decision-making process by encouraging the free exchange of opinions and ideas. If the requested records reflect final agency action, on the other hand, they are not exempt.
In the context of lease negotiations, this Office has held that if the competitive process is ongoing, records relating to the proposed lease are exempt. OAG 84-90. At the conclusion of negotiations, all records associated with the lease, which are not otherwise exempt from inspection, must be released to the public. OAG 87-21. It is our opinion that once an offered leasing rate, service and concession package has been accepted or rejected by a lessee, the matter is final and inspection is proper.
The Board also argues that the requested documents may be withheld under the exception for "correspondence with private individuals." This argument has been rejected by the Attorney General's Office on a number of occasions. In OAG 90-7, we stated:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a 'private individual,' as such phrase is used in KRS 61.878(1)(g), that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract.
See also OAG 84-284; OAG 89-31. Accordingly, once a lease is executed or a proposed lease is rejected, all correspondence pertaining to it become public record.
The Board has issued what is in effect a blanket denial of all documents generated between January 1, 1980 and the present which might indicate that incentives were offered to potential lessees in exchange for their agreement to purchase additional services from the Board. It is not our duty to speculate on the reasons underlying the Board's reluctance to produce these records. We note, however, that it strains logic to suggest that all negotiations initiated since January, 1980, remain unfinalized. We are persuaded that the Board has failed to adequately explain how the cited exemptions apply to the documents withheld, and that its partial denial of Mr. Tuggle's request is improper.
It is interesting to note that Florida has recently enacted a law specifically authorizing nondisclosure of certain records maintained by publicly owned or operated convention centers, sports arenas, coliseums, or auditoriums. Florida Stat. § 255.047 (eff. June 11, 1990). The statute provides, "The booking business records of a publicly owned or publicly operated convention center, sports stadium, sports arena, coliseum, or auditorium are exempt from the provisions of s. 119.07(1)," Florida's open records law. "Booking business records" are defined as client calendars, client lists, exhibitor lists, and marketing files. Fla. Stat. § 255.047(1)(a). The term does not include, among other things, contract negotiation documents, lease agreements, rental rates, event invoices, event work orders, payment schedules, or correspondence specific to a confirmed event. Fla. Stat. § 255.047(1)(a). Florida's legislature has thus acknowledged that although publicly owned convention centers generate documents containing proprietary information the disclosure of which might place them at a competitive disadvantage, no interest is served by withholding documents generated in the course of lease negotiations. These documents are of public concern, and the public must be afforded access to them.
We find that the Board's partial denial of Mr. Tuggle's request was improper. The Board is required to make available for inspection those records associated with lease negotiations, which have been brought to a conclusion, and which are not otherwise precluded from inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Kenneth Tuggle. The Board has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).