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Request By:
[NO REQUESTBY IN ORIGINAL]

Opinion

Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether Kentucky State University violated the Open Records Act in responding to Lacy L. Rice Jr.'s September 2, 1997, request for copies of various records relating to the University's Student Government Association and its activities. Those records are identified as:

* All financial records for Student Government Association Fall 1993-Spring 1997

* Budget for SGA 1997-8 school year

* All proposals and the contract for Homecoming 1997 Student Concert.

On September 5, 1997, Harold S. Greene, Jr., the University's general counsel, responded to Mr. Rice's request. Mr. Greene agreed to release the Student Government Association budget, and furnished Mr. Rice with a copy of "the relevant sections from the Kentucky State University, 1997-98 Current Funds, Operating Budget. "

In response to Mr. Rice's request for all SGA financial records from Fall 1993 to Spring 1997, Mr. Greene advised:

We would be in a better position to respond to your request if you would identify what you mean by 'all financial records of the Student Government Association'. The financial records of the SGA could include a vast array of budget and financial documents. Also, to assemble and copy "all financial records" the cost of copying and the staff time required to assemble the records would have to be included.

In subsequent conversations with University counsel, Mr. Rice significantly narrowed the scope of his original request by asking for copies of "the check register and income statement for the 1993-4 to 1996-7 school years." It is our understanding that this request was not honored.

Mr. Greene denied Mr. Rice's request for proposals for the 1997 homecoming student concert on the basis of KRS 61.878(1)(c), noting that the "proposals are offers to perform promotional services for the University." He argued that release of the proposals "could result in an unfair commercial advantage and could undermine the need for the University to procure the best bid. " Mr. Greene agreed to release "all contracts signed and negotiated once the 1997 concert is completed."

It is the opinion of this office that Kentucky State University violated the Open Records Act by failing to provide Mr. Rice with copies of all nonexempt records he requested including the 1993-1997 financial records for the Student Government Association, the 1997-1998 budget for the Student Government Association, and all proposals and the contract for the 1997 homecoming student concert.

SGA Financial Records

We first examine the University's response to Mr. Rice's request for "all financial records for Student Government Association from Fall 1993-Spring 1997." Although it did not deny the request, the University indicated that it was somehow too imprecise. We find that the University's failure to send Mr. Rice copies of the check register and income statements for the four year period identified in his request constituted a violation of the Open Records Act.

KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:

(3) A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

The Open Records Act thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186.

Mr. Rice lives and apparently works in Indianapolis, Indiana. The disputed records are located in Frankfort, Kentucky. Mr. Rice therefore satisfies the first requirement of KRS 61.872(3)(b). The issue in this appeal is whether he "precisely described" the disputed records, and whether those records "are readily available within the public agency. "

KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:

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 precondition 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 "blanket 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:

97-ORD-46, p. 3.

See also, 93-ORD-116; 94-ORD-12. Those decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:

[Public] agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.

It is . . . incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. If he does not, the agency is not obligated to conduct a search for the records.

95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "description" for purposes of on-site inspection pursuant to KRS 61.872(2). In 97-ORD-46, we articulated a standard for determining if a requester has described the records he wishes to access by mail with "precision":

A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.

97-ORD-46, p. 4.

Although Mr. Rice's original request was arguably too imprecise, we find that his amended request for check registers and income statements for a four year period was definite, specific, and unequivocal. Thus, Mr. Rice satisfied the second requirement of KRS 61.872(3) (b).

Finally, we find that Mr. Rice's request satisfies the third requirement of KRS 61.872(3)(b). The University is obligated to mail him copies of the records he requested if those records "are readily available within the public agency. " As we noted in 97-ORD-46 at page 5:

This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time," OAG 76-375, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.

It is, however, incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records.

The University has presented no evidence that the check register or income statements are widely dispersed or otherwise difficult to access. We therefore conclude that they are readily available within the agency. Although it may require prepayment of reasonable copying and postage charges from Mr. Rice, the University is directed to mail him copies of the Student Government Association's check register and income statements for school years 1993-1994 through 1996-1997. Contrary to Mr. Greene's apparent assertion, the University may not charge Mr. Rice for "staff time required to assembly the records," and is limited to a charge of ten cents per page unless it can document that its actual costs are greater. KRS 61.874(1); KRS 61.874(3);

Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985); 94-ORD-43; 93-ORD-44; 92-ORD-1491; OAG 92-79.

SGA 1997-98 Budget

We next examine the University's response to Mr. Rice's request for the Student Government Association budget for the 1997-98 school year. Mr. Greene responded by furnishing him with copies of two documents, the first captioned "Unrestricted Functional Summary Student Services" for the years 1996-1997 and 1997-1998, and the second captioned "Student Affairs 1996/97." Both documents contain a line item for Student Government Association, account number 2-14017, and indicate that $ 41,782 was allocated to the Association in the 1996-97 school year. Neither document provides the information normally associated with a budget, specifically an itemized summary of expenditures and income for the period. We assume that the Student Government Association was responsible for accounting for the $ 41,782 allocated to it in some fashion. Inasmuch as "amounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc.," we know of no basis for denying access to the Association's budget. OAG 90-30, p. 3; OAG 91-7, p. 3 ("records which show funds received and disbursed are public records. "); OAG 76-648, p. 2 ("Wherever public funds go, public interest follows"). If such a document exists, the University is directed to send Mr. Rice a copy, again upon prepayment of reasonable copying and postage charges, but excluding staff time required. If such a document does not exist, the university must explicitly say so.

Proposals and Contracts for Homecoming 1997 Student Concert

Finally, we find that Kentucky State University improperly denied Mr. Rice access to "all proposals and the contract for Homecoming 1997 Student Concert. " Relying on KRS 61.878 (1)(c), the University contends that the proposals "are offers to perform promotional services," and that publication of the proposals "could result in an unfair commercial advantage and could undermine the need for the University to procure the best bid. " KRS 61.878(1)(c)1. excludes from public inspection:

Records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.

In 96-ORD-135, we analyzed this exception in the context of bid proposals. At pages 3 and 4 of that decision, we observed:

Although this exemption has not generally been construed to exclude bid proposals, once those bids are open and a vendor selected, this office has recognized that bid proposals which contain secret commercial valuable plans and formulas may qualify for exclusion under KRS 61.878(1)(c)1.

For example, in OAG 83-256 we recognized that a proposal submitted in response to an RFP for an automated certification and issuance system for the food stamp program administered by CHR contained material in which the entity submitting the proposal had a proprietary interest within the meaning of KRS 61.878(1)(c), formerly codified as KRS 61.878(1)(b). See also, OAG 83-302 (adopting the reasoning of OAG 83-256).

Similarly, in OAG 88-1 we held that a bid proposal submitted in response to an RFP issued by the Finance and Administration Cabinet, Division of Purchases, contained secret commercially valuable plans and formulas which if openly disclosed would permit an unfair advantage to competitors of the entity submitting the proposal, including consolidated financial statements, project narratives, summary experience charts, work plans, and pricing schedules.

. . . .

Conversely, and as noted, this office has traditionally taken the view that once open, bids and proposals on advertised specifications are subject to public inspection. See, e.g., OAG 80-327; OAG 84-284; OAG 89-31; 93-ORD-5. Thus, in OAG 85-119, we observed:

This Office has on several occasions through the years dealt with bidding and the bidding process relative to the Open Records Act. We said, for example, in OAG 84-284 that the bid invitation, correspondence pertaining to the bids and the bids themselves are public records subject to the Open Records Act. The bids themselves and records which identify the bid or bidder individually would not be open to public inspection, however, until the bids were publicly opened. See also KRS 45A.080(4) relative to the public inspection of bids received under the competitive sealed bidding process.

OAG 85-119, p. 2.

In order to qualify for exemption under KRS 61.878(1)(c)1., public records must be: 1) confidentially disclosed to an agency or required by an agency to be disclosed to it; 2) generally recognized as confidential or proprietary; and 3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them. In two recent opinions, the Kentucky Supreme Court analyzed this provision in considerable depth, concluding that the public agencies which had invoked the exemption had met their burden of proof. In

Marina Management Services, Inc. v. Cabinet for Tourism, Ky., 906 S.W.2d 318 (1995), the court held that records containing financial information of privately owned marina operators were exempt from disclosure. The court reasoned that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. At page 319 of that opinion, the court observed:

The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditors Office. On these facts alone, the exemption clearly applies.

Thus, the Parks Department adduced sufficient proof to support invocation of the exemption.

Similarly, in

Hoy v. Kentucky Industrial Revitalization Authority, Ky., 906 S.W.2d 766 (1995), the court found:

The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . 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).

Again, the public agency from which access to confidentially disclosed records of a private corporation was sought established that those records were generally recognized as confidential or proprietary.

These cases, along with the cited open records decisions, confirm that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c) rests with the public agency. In denying Mr. Rice's request for all proposals for the 1997 homecoming student concert, the University has done little more than cite KRS 61.878(1)(c)1. and reference a portion of its exclusionary language. Mr. Greene maintains that publication of the proposals "could result in an unfair commercial advantage. . . ." This may or may not be true. This office simply does not have an adequate explanation for such an assertion. Without going into an exhaustive explanation, the University could have provided a brief description of the competitive harm the private entities making proposals might have suffered as a result of disclosure, and offered some proof that the disputed records are generally recognized as confidential or proprietary. As we have so often stated, a bare allegation, without a supporting explanation, is not sufficient under the Open Records Act. See, e.g., 95-ORD-107. We therefore find that Kentucky State University improperly denied the proposals for the 1997 homecoming student concert, and should send Mr. Rice copies subject to the conditions relating to prepayment of fees set forth above.

By the same token, we find that the University improperly withheld the contract for the 1997 concert until the concert was "completed." "Contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law." OAG 82-169, p. 3. The duty to disclose such records does not turn on the occurrence of the performance contracted for. Kentucky State University is directed to send Mr. Rice a copy of the contract upon prepayment of copying and postage fees.

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.

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