Request By:
R. James Straus/Department for Social Services
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS APPEAL
This matter comes to the Attorney General on appeal from the actions of the Department for Social Services relative to Ms. Donna Straus's February 9, 1993, request to inspect the proposals submitted to the Department for fiscal year 1992-93 by the Louisville Catholic Charities and the Lexington Catholic Social Service Bureau for the use of refugee resettlement funds. The Department contracts with various agencies across the state to provide services to refugees, and allocates funds received from the federal Office of Refugee Resettlement. Ms. Straus is Director of the Kentucky Refugee Ministries, an affiliate of Church World Service, an organization which resettles refugees in Kentucky. Her request was made under the Open Records Act.
In a letter dated February 12, 1993, Ms. Becky Fritts, Records Officer for the Department for Social Services, advised Ms. Straus that the Department would hold the check she submitted to cover copying costs "until a decision can be made regarding how to best handle [her] request." On February 18, 1993, Ms. Peggy Wallace, Commissioner of the Department for Social Services, denied Ms. Straus's request. Relying on KRS 61.878(1)(c)1.b., Commissioner Wallace indicated that the requested records "contain[] the contractor's plans for providing the refugee services and lists of personnel to be used in providing such services." In support of her position, Commissioner Wallace cited 93-ORD-1134 and OAG 83-256, which she interprets to mean "that proposals which contain[] material, which [sic] could be classified as unpatented, secret, commercially valuable plans (i.e., which identif[y] personnel and processes to be used) may be excluded from public inspection . . . ."
On behalf of his client, Kentucky Refugee Ministries, Inc., Mr. R. James Straus appealed to the Attorney General, pursuant to KRS 61.880(2), the Department's denial of Ms. Straus's request. He argues that the Department violated the Open Records Act by failing to notify Ms. Straus of its decision to deny her request within three days, as required by KRS 61.880(1), and by improperly relying on KRS 61.878(1)(c)1.b. to authorize nondisclosure of the requested records.
Mr. Straus maintains that in order to properly invoke KRS 61.878(1)(c)1.b., an agency must establish that the records:
* were "confidentially disclosed,"
* contain information which is "generally recognized as confidential or proprietary, "
* are such that disclosure "would permit an unfair commercial advantage to competitors of the entity that disclosed the records," and
* were "compiled and maintained . . . in conjunction with the regulation of commercial enterprise . . . ."
Mr. Straus notes that Commissioner Wallace does not assert that the records were "confidentially disclosed" to the Department for Social Services, or that the information contained in the records is generally recognized as "confidential or proprietary. " Moreover, Commissioner Wallace's denial "suggests no reasons why the public inspection of the Records would permit 'an unfair commercial advantage' to competitors, if any, of Catholic Charities of Louisville or Catholic Social Service Bureau." Nor does it contain any suggestion that the records were "compiled and maintained" in "conjunction with the regulation of commercial enterprise. " It is Mr. Straus's position that "the Department has strained the Exemption beyond recognition to support the Denial."
The issue presented in this appeal is whether the Department for Social Services properly relied on KRS 61.878(1)(c)1.b. to authorize nondisclosure of proposals submitted for fiscal year 1992-93 by the Louisville Catholic Charities and the Lexington Catholic Social Services Bureau for the use of Office of Refugee Resettlement funds. Based on the reasoning of 92-ORD-1020, and the authorities cited therein, we conclude that the Department for Social Services failed to sustain its burden of proving that the cited exception applies to the records withheld, and should promptly arrange for inspection of the proposals.
In 92-ORD-1020, a copy of which is attached, this Office held "that mere invocation of [KRS 61.878(1)(c)] and reference to prior opinions, without an adequate explanation of how the exception applies or the opinions are relevant, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3)." As Mr. Straus correctly observes, Commissioner Wallace has not established that the proposals were confidentially disclosed to the Department, that they are generally recognized as confidential or proprietary, that their disclosure would permit an unfair commercial advantage to competitors, or that they were compiled and maintained in conjunction with the regulation of a commercial enterprise. We believe that 92-ORD-1020 is dispositive of the present appeal.
In support of its position, the Department cites OAG 83-256 and 92-ORD-1134. In OAG 83-256, this Office analyzed the propriety of withholding the contents of a proposal submitted to the Finance and Administration Cabinet in response to a Request for Proposals to provide computer hardware, software, and communication programs necessary to operate a statewide automated certification and issuance system for the food stamp program operated by the Cabinet for Human Resources. We concluded that Electronic Data Systems, the corporation which submitted the proposal, had a proprietary interest in the proposal to the extent that it:
[D]escribes in particular the various items of equipment which will be used in performing the services, discloses the personnel which will be relied upon and includes biographic information of individuals in the employ of the company, contains charts, maps, diagrams, -- all of which have been especially designed and organized for the purpose of carrying out the objectives of the Department of Social Insurance in accordance with the RFP.
OAG 83-256, p. 6. We concluded that the proposal could be properly classified as a commercially valuable trade secret.
Similarly, in 92-ORD-1134 we held that the City of Paducah properly withheld a proposal submitted by Motorola in response to an RFP for a prototype "800 MHZ Trunk Radio Communication System." There, we found that because the proposal contained specific detail relative to items of equipment to be used in implementing the system, as well as site selection, charts, maps, and diagrams designed for the purpose of carrying out the city's objectives, it fell within the parameters of KRS 61.878(1)(c)1.b. No such showing has been made in this appeal.
Commissioner Wallace asserts that the requested records contain the contractor's plans for providing refugee services, as well as lists of personnel to be used in providing these services. We believe such records are of uniquely public interest, insofar as they substantiate that federal funds will be put to proper use, and cannot be characterized as confidential or proprietary. Indeed, we fail to see how the proposals could contain secret, commercially valuable plans or formulae. We concur with Mr. Straus in his view that the Department's invocation of KRS 61.878(1)(c)1.b. suggests a liberal interpretation of that exception which is not warranted by the clear language of the statute. It is the opinion of this Office that the facts presented in OAG 83-256 and 92-ORD-1134 are distinguishable from the facts presented in this appeal, and that the Department's reliance on these opinions, as well as KRS 61.878(1)(c)1.b., is misplaced.
Turning to the procedural issues raised in this appeal, we find that the Department's failure to notify Ms. Straus of its decision to withhold the records within three business days constitutes a violation of the Open Records Act. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
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.
Although the Department notified Ms. Straus, through Ms. Fritts, that a decision would be made "regarding how to best handle [her] request" within the three day time frame, such notification did not technically satisfy KRS 61.880(1). Ms. Straus was not formally notified of the Department's denial of her request until February 18.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
This section may be invoked only if a record is "in active use, in storage or not otherwise available . . . ." Any notification of a delay in affording access to the record in excess of three days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which it will be available for inspection. KRS 61.872(5) does not permit an agency to postpone its decision for reasons other than those enumerated in the statute. The Department for Social Services therefore erred in postponing notification until it could decide "how to best handle [Ms. Straus's] request."
The Department for Social Services may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.