TO BE PUBLISHED
95-ORD-27
February 27, 1995
In re: Christophe Stewart/Kentucky Lottery Corporation
OPEN RECORDS DECISION
These companion appeals originated in two requests to inspect public records submitted by Mr. Christophe Stewart to the Kentucky Lottery Corporation, the first on October 24, 1994, and the second on November 2, 1994. Mr. Stewart requested access to a number of documents pertaining to Corporation employees and contractual arrangements, many of which were released to him. However, Ms. Vicki P. Bordulis, a paralegal employed by the Lottery Corporation, denied Mr. Stewart access to the following documents on the bases asserted:
1. The Kentucky Lottery Corporation's contract with WHAS-TV for the nightly lottery drawing, and the Kentucky Lottery Corporation's contract with G-TECH Corporation currently in force;
Ms. Bordulis partially denied this portion of Mr. Stewart's request pursuant to KRS 61.878(1)(k), now codified and hereinafter referred to as KRS 61.878(1)(l), and KRS 154A.040. Although the Lottery Corporation released the contracts, Ms. Bordulis indicated that "certain proprietary information . . . made a part of the contract . . ." had been redacted.
2. All contracts that Mr. Brian Potter:
[A]uthorized, approved and maintained relating to the promotion and operation of the Lottery which were not consistent with KRS Chapter 45, 45A, and 154A, as referred to in paragraph 3 of the Appeal of Kentucky Lottery Corporation from Notice of Determination, in the matter of the Kentucky Lottery Corporation vs. Brian Potter, filed by Mr. Kenneth A. Bohnert on June 2, 1994[.]
Citing OAG 89-8, Ms. Bordulis responded that Mr. Stewart's request was "inappropriate" under the Open Records Act because it was too "broad and general." Additionally, Ms. Bordulis argued that under the rule announced in OAG 89-65 the provisions of the Open Records Act should not be used as a substitute for discovery, "which," she asserted, "is clearly the case with [this] request . . . ."
3. All contracts "entered into, signed and executed by Brian Potter, during his term as President, pursuant to KRS 45, KRS 45A, and KRS 154A";
Ms. Bordulis indicated that although she was uncertain what Mr. Stewart intended by the phrase "pursuant to KRS 45, KRS 45A, and KRS 154A in this context," the Lottery Corporation would make available for inspection on Friday, November 11, "all contracts entered into, signed and executed by Brian Potter, during his term as President." She explained that because this request "requires considerable compilation of information and review of Lottery files, which will require a substantial expenditure of time on the part of Lottery employees," an additional four business days would be needed to satisfy his request.
4. The Mercer Survey of Compensation of 1994, commissioned by the Lottery Corporation;
Ms. Bordulis stated that the survey, with the exception of that portion which is exempt under KRS 61.878(1)(h) and (i), now codified and hereinafter referred to as KRS 61.878(1)(i) and (j), would be available for inspection on November 4.
5. "[A]ll files of past and present employees, containing the following information: Date of hire, salary and hire [sic], current salary, job title, home department, grade and date in current position and ethnic group." In the alternative, Mr. Stewart agreed to accept a computer printout of this information.
Ms. Bordulis responded that because it does not classify employees by "home department," this information was not available. All other information would be available for inspection on November 11. Ms. Bordulis reiterated that the breadth of Mr. Stewart's request would necessitate an additional four days response time.
It is this series of responses that Mr. Stewart challenges.
In his letters of appeal to this office, Mr. Stewart argues that the Lottery Corporation's actions relative to his requests suggest an attempt to frustrate access to public records. In support of this position, he notes that the Lottery has unnecessarily postponed inspection of readily identifiable and accessible records. Mr. Stewart maintains, for example, that despite the Lottery's claim that his request for contracts relating to purchasing is a burdensome one, the request actually implicates only ten documents. Similarly, Mr. Stewart objects to the delay in producing information pertaining to Lottery employees, asserting that this information is electronically stored, and can be printed out "in a very short time." He notes that the Lottery has produced "identical reports" in the past.
Moreover, Mr. Stewart objects to Ms. Bordulis's denial of several of his requests. With respect to his request for "contracts authorized, approved and maintained during the tenure of Brain [sic] Potter as President," which Ms. Bordulis denied on the grounds that it was too broad, and alternatively, submitted for purposes of discovery, he observes:
The Lottery cannot deny the request unless it is allowed for in the statute. The motive or purpose of the request is irrelevant. It should be noted that the entire October 24, 1994 request was related to Mr. Potter's unemployment hearing. Using the Lottery rationale the entire request should been denied [sic], not just one paragraph.
In the same vein, he challenges the Lottery's denial of his request for contracts with WHAS-TV and G-TECH, commenting that access to these documents cannot be denied "because of alleged propriety."
Finally, and with reference to Ms. Bordulis's partial denial of his request for the Mercer Survey, a portion of which she withheld under KRS 61.878(1)(i) and (j), Mr. Stewart asserts:
The Mercer report is in two parts. A summary, which has been provided, and the statistical analysis to support the summary. The analysis is the part the Lottery is claiming its is [sic] exempt because it is law enforcement related or in draft form. If that is the case why and how can the summary be written and published. It should be noted that the news media has reported that the Lottery extensively revised the salary of most, if not all, Lottery employees based on this report. The revision could only have been accomplished with the analysis section.
Mr. Stewart therefore maintains that the Lottery's reliance on these exceptions is misplaced.
The question presented in this appeal is whether the Kentucky Lottery Corporation violated the Open Records Act in responding to Mr. Stewart's requests. For the reasons set forth below, we conclude that the Lottery's responses were violative of the Act to the extent that it failed to meet its statutory burden of proof in sustaining its denial of Mr. Stewart's requests.
1. The Kentucky Lottery Corporation's contract with WHAS-TV and G-TECH Corporation.
Although the Lottery Corporation released redacted copies of its contracts with WHAS-TV and G-TECH Corporation to Mr. Stewart, Ms. Bordulis withheld "certain proprietary information . . . made a part of the contract[s] . . . ." She did not elaborate.
KRS 61.880(1) contains guidelines for agency response to an open records request. That section provides that "[a]n 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." (Emphasis added.) In partially denying Mr. Stewart's request, Ms. Bordulis invoked KRS 61.878(1)(l) and KRS 154A.040. With the exception of a vague reference to "certain proprietary information," she did not offer any explanation of how these exceptions apply to those portions of the contracts withheld. It has long been the position of this office that mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882(3). See, e.g., 92-ORD-1020.
KRS 61.878(1)(l) exempts from the mandatory disclosure provisions of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This provision operates in tandem with KRS 154A.040 to authorize nondisclosure of: (a) records excluded from inspection under KRS 61.870 to 61.884, and specifically, KRS 61.878; (b) records which involve a trade secret or other legally-protectable intellectual property or confidential proprietary information of the corporation or of a vendor; or (c) records the disclosure of which could impair or adversely impact the security of the corporation in the operation of the lottery or the security of lottery retailers. All other records of the Lottery Corporation are declared open records. KRS 154A.040(1). Although she does not expressly so state, we assume that Ms. Bordulis relies on KRS 154A.040(1)(b).
It is the opinion of this office that the failure of the Lottery Corporation to identify, with any degree of specificity, the nature of the information withheld, and explain how that information is proprietary, constitutes a violation of KRS 61.880(1). More importantly, in the absence of any such explanation, we must conclude that the Lottery failed to meet its statutory burden of proof. A bare allegation that the records withheld are proprietary is not sufficient under the law. This does not mean that the Lottery's invocation of these statutes was unwarranted, only that it did not sustain its denial with proof. We therefore conclude that the Kentucky Lottery Corporation improperly redacted those portions of the contracts which purportedly contain proprietary information.
2. All contracts which Brian Potter "authorized, approved and maintained relating to the promotion and operation of the Lottery which were not consistent with KRS Chapter 45, 45A, and 154A . . . ."
We begin by noting that there appears to be some legitimate confusion relative to this October 24 request. In his November 2 letter to the Lottery Corporation, Mr. Stewart requested access to all contracts "entered into, signed and executed by Brian Potter, during his term as President, pursuant to KRS 45, KRS 45A and KRS 154A." In his November 4 letter of appeal to this office, he refers to contracts which "deal with the area of purchasing."
Ms. Bordulis denied Mr. Stewart's open records request for contracts which were inconsistent with KRS 45, KRS 45A, and KRS 154A on the grounds that the request was too broad, and therefore improper, and on the alternate grounds that it represented an attempt to use the Open Records Act as a substitute for discovery. She subsequently agreed to release contracts entered into during Mr. Potter's term as President, but advised him that because of the breadth of the request, the Lottery Corporation would need four additional days to retrieve the records. Mr. Stewart asserts that the requests implicate, at most, ten documents.
We do not concur with the Lottery Corporation's characterization of Mr. Stewart's request as broad and general. This office has previously recognized that although the purpose and intent of the Open Records Act is to permit the "free and open examination of public records . . . ," this right of access is not absolute. KRS 61.871. As a pre- condition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions, we have held that "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-8; OAG 89-61; OAG 91-58. Elaborating on this position, in OAG 89-8, at p. 2, we observed:
The Open Records Act provides in part in KRS 61.872(1) that all public records, with certain exceptions, shall be open for public inspection. While persons will obviously acquire information from these records, the primary purpose of the Act is making records available for public inspection. The Act does not require a public agency to provide information beyond that which is made available from permitting access to the public documents. Thus, if the agency is to provide access to public documents the person seeking to inspect those documents must identify them with sufficient clarity to enable the public agency to locate and make them available.
If a requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8.
Mr. Stewart requested access to a specific type of document, to wit contracts, on a particular subject, to wit purchasing, for a discreet period of time, to wit the period during which Mr. Potter served as President of the Lottery Corporation. His request was, in our view, specific enough to permit the custodian to determine what records it encompassed, necessitating an obligatory search, as opposed to nonobligatory research.
Nor are we persuaded by the Lottery Corporation's argument that Mr. Stewart's request is improper, and can be denied, because it represents an attempt to use the Open Records Act as a substitute for discovery. The presence of litigation, alluded to by Ms. Bordulis, does not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. At page 3 of OAG 89-65, we observed:
Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
However, we noted that in making this observation, we did not intend to:
suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery.
Id. See also, 89-53, p. 4. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.
Nevertheless, as the Attorney General observed in an early opinion:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the record.
OAG 82-169, p. 2. The Lottery Corporation thus erred in denying Mr. Stewart's request on these grounds.
3. All contracts "entered into, signed and executed by Brian Potter, during his term as President, pursuant to KRS 45, KRS 45A and KRS 154A."
Noting that the Lottery Corporation was "unclear what is intended by the words, 'pursuant to KRS 45, KRS 45A and KRS 154A,'" Ms. Bordulis nevertheless agreed to release "all contracts entered into, signed and executed by Brian Potter during his term as President" to Mr. Stewart. Ms. Bordulis further advised him that owing to the scope of the request, the records would not be available until November 11, seven business days after his request was submitted. She explained that the request would require "considerable compilation of information . . . [and] a substantial expenditure of time . . . ."
KRS 61.872(5) and (6) provide:
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.
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
Although she did not cite these provisions, Ms. Bordulis intimates that responding to Mr. Stewart's request will place a burden on the Lottery Corporation, which, if not unreasonable, justifies a four day extension of the statutory three day deadline. We do not believe that this position is well grounded in the law.
Based on his earlier request, and his reference to Chapters 45 and 45A of the Kentucky Revised Statutes, we believe that Ms. Bordulis could safely construe Mr. Stewart's request as a request for purchasing contracts signed by Brian Potter during his term as president of the Lottery Corporation. As noted above, to the extent that this request is limited to a special type of document, on a particular subject, for a limited period of time, it cannot be characterized as unduly broad.
No doubt Mr. Stewart's request implicates a large number of documents. We do not know, and have not been apprised, how many contracts the request entails. Nor do we know the basis for Mr. Stewart's assertion that the request implicates only ten documents. The Lottery Corporation has advised that the request requires "considerable compilation of information" and "a substantial expenditure of time." In our view, this does not constitute a sufficiently detailed explanation of the cause for delay as contemplated in KRS 61.872(5). As this office observed in OAG 92-35, at page 6, "[A] determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of separating exempt and nonexempt materials." The Lottery Corporation fails to demonstrate that the task of gathering the documents necessitates a delay of four days. We believe that OAG 92-35, a copy of which is attached, is dispositive of this portion of Mr. Stewart's appeal.
4. The Mercer Survey of Compensation of 1994, commissioned by the Lottery Corporation.
Ms. Bordulis denied Mr. Stewart access to portions of the Mercer Survey, a survey apparently commissioned by the Lottery Corporation in 1994 which resulted in a revision of the Lottery's salary structure, on the grounds that those portions were exempt under KRS 61.878(1)(h) and (i), now codified as KRS 61.878(1)(i) and (j). These provisions permit an agency to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
Again, Ms. Bordulis did not elaborate.
What little we know about the Mercer Survey we learned from Mr. Stewart, who indicated that the survey consists of a summary, which the Lottery has released, and a statistical analysis supporting the summary, which the Lottery has not released. Because the Lottery failed to briefly explain the applicability of these exceptions to the records withheld, we have no way of knowing whether this is an accurate characterization of the survey. Nor can we determine whether the Lottery properly invoked the exceptions.
Where a public agency expends public funds to conduct a study and prepare a report, "the public has a legitimate interest in its contents." University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 377 (1992). Unless the agency can then invoke an exemption to public inspection, and justify nondisclosure by briefly explaining its application to the records withheld, that report must be released. The report "represents a legitimate inquiry into the operation of an agency of the Commonwealth." Id.
As we stated above, the failure of the Lottery Corporation to describe, with any degree of specificity, the nature of the record withheld, and explain how it can be characterized as preliminary, constitutes a violation of KRS 61.880(1). Moreover, in the absence of any explanation, we must conclude that the Lottery failed to meet its statutory burden of proof. KRS 61.880(2)(c). Again, we do not mean to suggest that the Lottery's invocation of the claimed exemptions was improper, only that it failed to sustain its denial with proof. We therefore conclude that the Lottery Corporation improperly redacted those portions of the Mercer Survey which it characterized as preliminary.
5. "All files of past and present employees containing the following information: Date of hire, salary and hire [sic], current salary, job title, home department, grade and date in current position and ethnic group [sic]," or a computer printout of this information.
Although the Lottery Corporation agreed to release the information requested, with the exception of "home department," which it does not maintain, Ms. Bordulis stated that because of the breadth of Mr. Stewart's request, the information would not be available within three days. Instead, the Lottery Corporation would need seven days to produce the information. Mr. Stewart responds that this information is electronically stored, and can be quickly printed out. He notes that the Lottery has produced "identical reports" in the past.
We reaffirm the opinion expressed in Section 3 above. The Lottery Corporation has advised that Mr. Stewart's request requires "considerable compilation of information" and "a substantial expenditure of time." The Lottery has not indicated how many documents are implicated by the request or the difficulties it faces in retrieving them. The Lottery's response does not contain a sufficiently detailed explanation of the cause for delay as required by KRS 61.872(5). Therefore, we conclude that the Lottery Corporation improperly delayed access to records pertaining to former and current employees.
The Kentucky Lottery Corporation may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be
named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/1455, 1458
Attachment: OAG 92-35
Distributed to:
Ms. Vicki P. Bordulis, Paralegal
Kentucky Lottery Corporation
Two Paragon Centre, Suite 400
6040 Dutchmans Lane
Louisville, KY 40205-3271
Hon. Christophe Stewart
Barristers Hall
1009 South 4th Street
Louisville, KY 40203-3226