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 Natural Resources and Environmental Protection Cabinet's denial of Mr. Robert C. Moore's open records requests for certain records relating to a prospective administrative adjudication by the Cabinet. On July 9, 1996, the Cabinet issued a Notice of Violation to A. K. Steel Coke Plant charging that KRS 224.46-520 and related regulations had been violated by the presence of hazardous waste or benzene contaminated soil at the Plant. The requested records were compiled in the process of detecting and investigating the violations.
At issue in this appeal is the Cabinet's denial of Mr. Moore's request to inspect the following documents: the multi-media inspection report; in-house laboratory records reflecting the analysis of samples obtained during the multi-media inspection; preliminary copies of laboratory reports; records of communications between Cabinet personnel concerning the issuance of the Notice of Violation; and a list of the records withheld from disclosure. It appears from documentation provided by the parties that other requested records have been provided to Mr. Moore.
After receipt of Mr. Moore's appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Faith B. Burns, Office of Legal Services, on behalf of the Cabinet, provided this office with a response to the issue raised in the appeal relative to the multi-media inspection report. In her response, dated July 22, 1996, Ms. Burns states:
The "multimedia inspection report" is still a preliminary draft, and pursuant to KRS 61.878(1)(h) is exempt from the requirement of disclosure, so A. K.'s allegation that this Agency improperly denied it access to inspect this "multimedia inspection report" is erroneous. When that document becomes a final document of this Agency, it will be made available to A. K. The records custodian cannot produce for inspection those documents that are preliminary drafts.
By letter dated August 14, 1996, Mr. Moore stated to this office that it appeared that there were additional records which had not been made available by the Cabinet for inspection. In his letter, he states, as to the records relevant to this appeal:
These records include the following: "(1) The in-house laboratory records reflecting the analysis of the samples obtained during the multi-media inspection; (2) The preliminary copies of the laboratory reports; . . . and (5) Any records of communications between Cabinet personnel concerning the issuance of the Notice of Violation. Additionally, if records are being withheld from disclosure, it would appear that the Cabinet should be required to provide a list of these records so that you can make a determination as to whether or not these records are exempt from disclosure under the provisions relied upon by the Cabinet.
By letter dated August 19, 1996, Ms. Robin Thomerson, Office of Legal Services, provided this office with a response on behalf of the Cabinet to Mr. Moore's August 14, 1996 letter. In this response, Ms. Thomerson, in addressing the requested records at issue in this appeal, states that the Cabinet considers the in-house laboratory records reflecting the analysis of the samples obtained during the multi-media inspection and the preliminary copies of the laboratory reports to be preliminary drafts protected by KRS 61.878(1)(i) and thus excluded from disclosure.
As to any records of communications between Cabinet personnel concerning the issuance of the Notice of Violation, she explains that the Cabinet considers these documents excluded from disclosure by KRS 61.878(1)(h) and (j) since they contain preliminary opinions and recommendations and were compiled in the process of detecting and investigating statutory and regulatory violations and disclosure would harm the Cabinet by premature release of information to be used in a prospective administrative adjudication.
Lastly, Ms. Thomerson states the Cabinet denied Mr. Moore's request for a list of the documents withheld from disclosure which relate to the issuance of the NOV, because the provisions of KRS 61.878 only require the Cabinet to "separate the excepted and make the nonexcepted material available for review," citing KRS 61.878(4).
By letter dated August 26, 1996, Mr. Moore provided this office with a response regarding the records in question. In pertinent part, he argues:
(1) The in-house laboratory records - They are clearly not preliminary records, they are final records which were relied upon by the laboratory in issuing the final laboratory report.
(2) The preliminary copies of laboratory reports - They should be made available for inspection because the Cabinet has previously made preliminary drafts of laboratory results available for review. In addition, since the laboratory report has been finalized and issued, the preliminary report is no longer subject to change and should be made available for inspection.
. . .
(4) Any records of communications between Cabinet personnel concerning the issuance of the NOV - The Cabinet failed to indicate in any way how release of these notes would harm the agency. Thus, the records should be made available for inspection.
(5) A list of records withheld from disclosure - Without a list identifying the records withheld, it will be difficult for the requester to determine whether the records are required to made available for inspection. Accordingly, the Cabinet should be required to provide a detailed list identifying the documents withheld from inspection.
By letter dated September 11, 1996, Mr. Bryon Alan Thompson, Office of Legal Services, responded to the arguments set forth in Mr. Moore's letter of August 26, 1996. In his response, Mr. Thompson states that the in-house laboratory reports are more accurately cast as preliminary documents, drafts, and notes used as aids to compose the final laboratory report which are clearly exempt under KRS 61.878(1)(i). He further states that as to analysis of samples taken on May 31, 1996, they were performed by a contract laboratory and thus were not maintained by the Cabinet.
He states that the preliminary copies of laboratory reports are exempt for the same reasons as the in-house laboratory records, as preliminary documents under KRS 61.878(1)(i). He acknowledges that these reports have been made available previously, but states they were obtained by counsel in discovery while in litigation, and not as the result of an open records request under KRS Chapter 61.
Regarding any records of communications between Cabinet personnel concerning the issuance of the NOV, Mr. Thompson states that "release of these inter-office communications between various branches of the Cabinet, compiled in the process of detecting and investigating statutory and regulatory violations leading up to the Notice of Violation, would harm the Cabinet's prospective administrative adjudication. "
Lastly, Mr. Thompson states that a list of records withheld from disclosure is not a document the Cabinet generates in its ordinary course of business and to do so would be a burdensome task because of the many thousands of files maintained by the Cabinet. He argues that KRS 61.878(4) clearly requires that the Cabinet only need "separate the excepted and make the nonexcepted available for examination."
By letter dated September 19, 1996, Mr. Moore provided a response to the Cabinet's letter of September 11, 1996, in which he argues, in relevant part, that it is clear that the final in-house laboratory records are not preliminary drafts; they are final records which are not subject to revision. It is equally clear that they are not preliminary recommendations or memoranda in which opinions are expressed or policies formulated. They merely contain factual information concerning the analysis of the samples. The same is true of the in-house laboratory reports maintained by the Cabinet's subcontractor, as these records are "owned" by the Cabinet. (See KRS 61.870(2).) This same reasoning should apply to the preliminary drafts issued by the laboratories, particularly where the final report has now been issued, and the Cabinet has previously disclosed preliminary laboratory reports in response to open records requests.
He further argues that as to any records of communications between Cabinet personnel concerning the July 9, 1996 NOV, the Cabinet does not assert that the disclosure of same would "harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication, " as required by KRS 61.878(1)(h). Therefore, it should be required to make the requested records available for inspection.
Finally, he argues that the Cabinet failed to establish that providing a list of the records withheld would be a burdensome task, as the Cabinet had represented only a few records were withheld from disclosure.
We are asked to determine whether the responses of the Cabinet were consistent with the Open Records Act. For the reasons which follow, we conclude that the responses were consistent in part and inconsistent in part with the Act.
Among the public records which may be excluded from public inspection are those set forth in KRS 61.878(1)(i) and (j):
(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.
This office has consistently concluded that intraoffice records are exempt from public inspection, especially where the documents are preliminary (not evidence of final agency action) and contain opinions of the writers. OAG 85-104; OAG 86-5; OAG 90-66.
In OAG 85-104, this office held that the Cabinet properly relied upon KRS 61.878(1)(g) and (h), now codified as KRS 61.878(1)(i) and (j), in denying a request to inspect the reports of one of its field inspectors, relative to her inspection of a landfill operation, which contained the inspector's observations and opinions, as such reports were intraoffice memoranda containing preliminary drafts, notes, and personal observations. There, we stated that such records are only subject to public inspection (in the absence of a court order) if they constitute notice of final action of the public agency or are incorporated into the public agency's final report or final decision on the matter. The Cabinet stated that the multi-media inspection report was not yet a final document, but would be made available when it becomes a completed document.
The Cabinet explained that the in-house laboratory records and reports were preliminary drafts to be used as aids to compose the final laboratory report; that even though they may be final documents, they did not constitute final agency action.
Accordingly, we conclude the Cabinet properly denied access to the multi-media inspection report, the in-house laboratory records reflecting the analysis of samples obtained during the multi-media inspection and the preliminary copies of laboratory reports under authority of KRS 61.878(1)(i). To the extent these records become part of or are incorporated into final agency action, they should be made available for inspection. The same would apply to records of analysis of samples done by a contract laboratory for the Cabinet.
The Cabinet denied Mr. Moore's request for access to records of communications between Cabinet personnel concerning the issuance of the Notice of Violation, relying upon KRS 61.878(1)(h) and (j).
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . [.] The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]
The Cabinet explains that these records contain preliminary opinions and recommendations and were compiled in the process of detecting and investigating statutory violations and that premature release of the records would harm the Cabinet's prospective administrative adjudication.
Mr. Thompson further explained the harm, stating:
Furthermore, the release of information of this nature would chill the free flow of information between the component parts of the Cabinet. A multi-media inspection is named such because it involves the input of the three main divisions of the Department of Environmental Protection, those for water, air and waste. The negative impact this would make on the regulatory program is obvious, Cabinet professionals would be restrained from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts and notes and preliminary comments thrown into the public arena as if they were "final action of a public agency. "
We conclude that the Cabinet properly withheld the records of communications of Cabinet personnel concerning the NOV under authority of KRS 61.878(1)(h) and (j), as they are records containing preliminary opinions and recommendations which were compiled in investigating the statutory violation and the premature release of these records would harm the Cabinet's prospective administrative adjudication. 95-ORD-95. As noted above, to the extent any of these records are made part of or incorporated into final agency action, they should be made available for inspection.
We further conclude that the Cabinet improperly denied Mr. Moore's request for a list of the documents withheld from disclosure on the basis that it would be a burdensome task.
The Open Records Act requires that an agency, in responding to a request, acknowledge whether the requested record exists. If the record exists and inspection is denied, the agency should set forth the specific statutory exemptions authorizing nondisclosure and briefly explain how the exemption applies to the records withheld. Should a portion of the record be exempt or confidential, the exempted portion should be masked and the remaining portion made available for inspection. KRS 61.880(1); KRS 61.878(4).
However, in this case, the Cabinet's response was deficient in that it did not identify the documents it was withholding. Obviously, an agency would not maintain such a list in the ordinary course of business. Moreover, the Cabinet has not established by clear and convincing evidence, as required by KRS 61.872(6), that to provide a response listing the records withheld would place an unreasonable burden upon it. The Cabinet should provide a response setting forth the requested records that it is withholding from inspection. 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.