Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Cabinet for Economic Development's partial denial of Ms. Kathryn Tallman's open records requests, on behalf of the Service Employees International Union, to review certain of the agency's records related to requests for tax assistance under the Kentucky Jobs Development Act.
By letter dated February 13, 1996, Ms. Tallman requested:
Access to and a copy of all files and records associated with the request of VenTech, Inc. for tax assistance under the Kentucky Jobs Development Act, including:
Application submitted by VenTech, Inc. to KEDFA and local jurisdiction.
Letter from local jurisdiction supporting the project.
Preliminary resolution by KEDFA approving the project.
Memorandum of agreement executed upon preliminary approval.
Resolution of final approval from local jurisdiction.
Record of the public hearing.
Resolution of final approval of technology agreement.
Notice from VenTech, Inc. to KEDFA of activation date of project. Verification of start-up costs and rental agreements.
By letter dated February 16, 1996, Ms. Lori H. Flanery, General Counsel, Cabinet for Economic Development, responded to Ms. Tallman's request, stating in relevant part:
Specifically, we cannot make available to you "all files and records associated with the request of VenTech, Inc. for tax assistance under the Kentucky Jobs Development Act" since much of that material is exempt from mandatory disclosure under the law. The file contains material from the company detailing its internal financial situation, information which would be detrimental to its operations if known by competitors, preliminary Cabinet staff opinions, correspon-dence to private individuals, and draft materials. All of these items are exempt from disclosure according to KRS 61.878(1)(c), (d), (i), and (j). Several of the specific items you requested are likewise unavailable.
By letter dated March 5, 1996, Ms. Tallman submitted another open records request, seeking:
access to and a copy of all available records associated with the request of Nursing Center Division of Vencor, Inc. & Subsidiaries for tax assistance under the Kentucky Jobs Development Act, including:
Notice of Public Hearing.
Minutes of the meeting of 12/19/95 in which the project was given preliminary approval.
Preliminary resolution by KEDFA approving the project.
Memorandum of agreement executed upon preliminary approval.
By letter dated March 6, 1996, Ms. Flanery responded to Ms. Tallman's request, stating in part:
As you know from our previous conversations and correspondence, we are not able to completely satisfy your request for "all available" documents relating to the KJDA application since much of that information is exempted from disclosure pursuant to KRS 61.878(1)(c). Also, we cannot provide you with the notice of public hearing since one has not yet been called. However, the other information you requested is available and copies are enclosed herein. Please let me know if you need anything else.
On March 19, 1996, Ms. Bonnie Ladin, Dignity Project Manager, Service Employees International Union, submitted a letter of appeal to this office from the Cabinet's partial denial of Ms. Tallman's open records requests. Ms. Ladin states that while certain documents were made available, copies of the applications for tax assistance or the letter from the local jurisdiction supporting the projects were not provided.
Ms. Ladin asks this office to mandate the disclosure of the requested applications and the letter from the local jurisdiction supporting the projects. In addition, she requests that we mandate the disclosure of the following documents: Economic Development Incentive Disclosure Statement and Benefit Analysis Data Form; documents filed pursuant to 307 KAR 2:010 and KRS 154.24-090(3a); and documents filed pursuant to 307 KAR 2:010 and KRS 154.24-090(4).
Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Flanery provided this office with a response to the issues raised in this appeal.
In her response, Ms. Flanery explained that each time a request was made, she contacted the appropriate Cabinet staff and produced to Ms. Kathryn Tallman copies of all the information she wanted which was not protected from disclosure.
In respect to Ms. Tallman's February 13, 1996 request, Ms. Flanery states each of the items requested was provided except the "Application submitted by VenTech, Inc. and local jurisdiction, " which she claims is exempt from disclosure under KRS 61.878(1)(c).
As to Ms. Tallman's March 5, 1996 request, Ms. Flanery states that all requested records were made available with the exception of the KJDA application and documents related to it, which are exempt under KRS 61.878(1)(c), and the notice of public hearing, which did not exist since a hearing had not yet been called.
In addition, Ms. Flanery, in her response to the letter of appeal, points out that Ms. Ladin requests this office, in her letter of appeal, to mandate the disclosure of specific documents which were not part of the open records requests to the Cabinet. Ms. Flanery argues that a request to inspect these records should be made first to the Cabinet in an open records request rather than in a letter of appeal.
We are asked to determine whether the Cabinet for Economic Development acted consistently with the Open Records Act in its partial denial of the open records requests. For the reasons which follow, we conclude that the Cabinet's partial denial was consistent with the Act.
KRS 61.878(1) at subsection (c) provides for the nondisclosure of the following records:
. . .
2. Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
. . .
b. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154[.]
In
Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766 (1995), the Supreme Court in construing KRS 61.878(1)(c)(2)(b) stated:
The stated language of KRS 61.878(1)(c)(2)(b) seems quite clear: an entity seeking tax credits pursuant to KRS Chapter 154 need not disclose confidential information submitted in applying for such credits.
As set forth in her February 16, 1996 response, Ms. Flanery, in denying the portion of the request to inspect the application submitted by VenTech, Inc. and the Cabinet's file related thereto, stated in part:
The file contains material from the company detailing its internal financial situation, information which would be detrimental to its operations if known by competitors . . . .
In Hoy, supra, the Court found that similar information submitted by General Electric in its application for investment tax credits fell within the exception from disclosure provided by KRS 61.878(1)(c). In so finding, the Court stated, at 768:
It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
Accordingly, it is the decision of this office that the Cabinet acted consistently with the Open Records Act when it denied access to the applications and files related thereto on the basis of KRS 61.878(1) (c)(2)(b).
We further find that the Cabinet acted consistently with the Act in not providing access to the Notice of Public Hearing on the basis that such a record did not exist. This office has long recognized that a public agency cannot furnish access to records which it does not have or which do not exist. 96-ORD-41.
Finally, we decline to mandate or consider the propriety of a request for the inspection of records made for the first time in a letter of appeal. A request to inspect public records should be made first to the agency in accordance with the procedures set out in the Open Records Act and the agency given an opportunity to respond to the request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.