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 the Transportation Cabinet properly relied on KRS 61.878(1)(j), misidentified as KRS 61.878(1)(i), in partially denying Kentucky Post reporter Monica Dias's request for various records "relating to defective concrete used for the reconstruction of Interstate 75 at Dixie Highway in Ft. Mitchell in Kenton County." For the reasons that follow, we find that the Cabinet did not violate the Open Records Act in partially denying Ms. Dias's request.
On November 30, 1998, Ms. Dias submitted an open records request to the Cabinet which supplemented an earlier request. The records identified in her request included:
. laboratory results of any tests that were conducted on the concrete and on the components of the concrete;
. all correspondence between the contractors and the cabinet;
. a proposal for correcting the defects that contractor W. L. Harper Co. has presented to the cabinet, and all responses the cabinet has made regarding Harper's proposal.
Commissioner Ed Roberts responded to Ms. Dias's request on December 3, 1998, advising her that the Cabinet:
is researching its files to determine whether documents exist that are responsive to this inquiry [and] will respond as soon as it has completed its review.
With respect to her request for the contractor's proposal for correcting the defects, Commissioner Roberts stated:
Preliminary documents have been transmitted between the parties. KRS 61.878(1)(I) exempts this from inspection until final action is taken. Once final decisions are made, we can then make this material available to you.
Dissatisfied with the Cabinet's response, Ms. Dias initiated this open records appeal.
In her letter of appeal, Ms. Dias focuses on the Cabinet's failure to produce "the actual plan itself, which . . . contains the conclusions of a contractor to correct a defect in a major highway project." It is her position that KRS 61.878(1)(j) is inapplicable since The Post "is not seeking preliminary internal communications . . . that preceded the drafting of the plan Harper submitted to the Cabinet. " In support, she cites OAG 92-44 for the proposition that:
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. . . . Such a contractor, in our view, loses any character of a "private individual" . . . in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract.
With respect to the Transportation Cabinet's failure to produce "the state's response to Harper's plan," Ms. Dias characterizes the Cabinet's conduct "as arbitrary and a deliberate attempt to block the public's access to public information." She notes that in the past, the Cabinet has released correspondence with Harper, "including memoranda and e-mail between the Cabinet and Harper," and concludes that "the Cabinet's arbitrary classification of what is preliminary correspondence and what is not preliminary clearly circumvents the intent of the Open Records Law. "
In its response to The Post's appeal, the Transportation Cabinet asserts:
All documents in possession of the Transportation Cabinet responsive to Ms. Dias' request have been provided but for two documents. These consist of two letters between this agency and W. L. Harper Construction Company. The subject matter of these letters concerns a construction project and its applicable contract on Interstate 75 in Kenton County. Specifically, the letters are a preliminary proposal and counter-proposal between the contracting parties to resolve certain concrete defects on the project. No final action or ultimate resolution has been reached regarding this dispute.
Due to the preliminary aspects of the letters and the critical point the negotiations have reached, the Kentucky Transportation Cabinet denied Ms. Dias' request for these two letters citing KRS 61.878(1)(I). 1 To publicly disclose the letters of negotiation, which discuss the proposal steps for curing a defect in the construction, including payment, would impede and possible destroy any chance to resolve this matter without long-term litigation. Upon final action or a final decision in this contract dispute, this agency will further respond to Ms. Dias' request.
The Cabinet distinguishes OAG 92-44, noting that in that appeal the disputed documents pertained to a matter which had been finalized, and urges this office to affirm its partial denial of Ms. Dias's request.
We find that the Transportation Cabinet properly relied on KRS 61.878(1)(j) in partially denying Ms. Dias's request. The disputed documents in this appeal consist of a proposal submitted by the Cabinet to The Harper Company relating to the problems with the concrete pavement on I-75, and The Harper Company's counterproposal. Our review of these documents does not confirm the existence of a "plan" submitted by the company. The proposal and counterproposal are still on the negotiating table, and no final resolution of the dispute has been reached.
In an early opinion, this office observed:
The word "proposal" is defined as "an act of putting forward or stating; something proposed; suggestion,' all of which implies something preliminary. In addition to exemption [(i)], exemption [(j)] also covers subject document: "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
OAG 79-347, p. 3; OAG 79-326 (holding that proposals and counterproposals submitted in negotiating process may be withheld pursuant to KRS 61.878(1)(i) and (j)); OAG 87-21 (holding that records involved with an ongoing competitive negotiation process are preliminary pending final resolution of the matter); OAG 91-21 (holding that letter of intent issued by city and county relative to incentive package is subject to negotiation until such time as final agreement is reached among the parties and may be withheld pursuant to KRS 61.878(1)(i) and (j)); 97-ORD-62 (holding that records generated in the course of negotiations and disclosing the substance of those negotiations may be withheld pursuant to KRS 61.878(1)(i) and (j) since "premature disclosure of records reflecting the negotiations . . . could seriously compromise the project [and] nondisclosure of those records prior to the finalization of the agreement promotes the purposes for which KRS 61.878(1)(i) [and] (j) . . . were enacted . . ."). On the basis of these authorities, we find no error in the Transportation Cabinet's denial of Ms. Dias's request for The Harper Company's counterproposal.
On the same legal theory, we find no error in the Cabinet's decision to withhold its original proposal. It too represents a preliminary formulation of policy, and a starting point for negotiations, not final agency action. The weight of authority clearly supports the Cabinet's position. We reject the argument advanced by The Post that the Cabinet is foreclosed from denying public access to this record since it previously released other correspondence between itself and The Harper Company. As we noted in an early opinion:
The Open Records Law does not provide any mandate against the opening for inspection of any public records, even records which may be exempt from the requirements of being open for inspection. We believe either party may reveal any proposals made by either side in the negotiations.
OAG 79-326, p. 3 (citing OAG 79-275 for the proposition that "the custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 . . ."). By exercising its discretion in favor of disclosure of records which were at least arguably exempt under the Open Records Act, the Cabinet promoted the goal of agency accountability and facilitated public oversight of its operations. It did not waive its right to withhold particular records under a properly invoked exception to public inspection, namely KRS 61.878(1)(j).
In closing, we again remind the Transportation Cabinet that a response to an open records request that the Cabinet is researching its files to determine if responsive records exist, and will respond "as soon as it has completed its review" is procedurally deficient. KRS 61.880(1) establishes clear guidelines for agency response to an open records request by providing:
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.
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act. We urge the Transportation Cabinet to review its open records policy as it relates to its KRS 61.880(1) responses to records requests.
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.
Footnotes
Footnotes
1 In a conversation with the undersigned, assistant general counsel J. Todd Shipp stated that the Cabinet erroneously cited KRS 61.878(1)(i) when it intended to rely on KRS 61.878(1)(j). The error was apparently attributable to the Cabinet's failure to use a current copy of the Kentucky Revised Statutes.