Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Transportation Cabinet violated the Open Records Act in its responses to two open records requests by Judith A. Villines, on behalf of her client, River Fields, Inc., a river conservation organization, for copies of records related to the Louisville-Southern Indiana Ohio River Bridges Project. For the reasons that follow, we substantially affirm the Cabinet's denial of Ms. Villines' request.
By letter dated October 25, 2000, Ms. Villines requested copies of the following documents:
(1) all land use plans for the Louisville, Kentucky/Southern Indiana Region, including Bullitt, Jefferson and Oldham counties in Kentucky and Floyd and Clark Counties in Indiana, which the Kentucky Transportation Cabinet, or anyone acting on behalf of, or at direction of, the Kentucky Transportation Cabinet (including CTS, Inc.) has considered or intends to consider in determining the purpose and need for the Louisville-Southern Indiana Ohio River Bridges Project.
(2) all models, studies and reports or other documents relating to the socioeconomic planning parameters (including household and employment), projected regional growth, travel demand or regional accessibility that the Kentucky Transportation Cabinet, or anyone acting on behalf of or at the direction of the Cabinet (including CTS, Inc.) has used or intends to use to develop and replicate travel patterns in the Louisville/Southern Indiana region (as described above) or to determine the purpose and need for a bridge or bridges in connection with the Southern Indiana Ohio River Bridges Project.
This request is not limited to those documents that have been placed in the official record for the project that is currently maintained by CTS, Inc.
By letter dated November 2, 2000, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, responded to Ms. Villines' request on behalf of the Cabinet. In his response, Mr. Roberts stated:
Part I of your request: These documents can be obtained through the respective counties in question.
Part II of your request: Denied. All materials that are pertinent to this request are still preliminary in nature. KRS 61.878(1)(i) and KRS 61.878(1)(j) both address this issue, and exempt release of this material until a final draft is complete.
By letter dated November 17, 2000, Ms. Villines asked the Cabinet to reconsider and rescind its denial of her October 25, 2000 request. She challenged the Cabinet's response that she could obtain the land use plans from other public agencies as an improper basis for denying her request under the Open Records Act. She also challenged the Cabinet's denial of request for all models, studies, etc., that the Cabinet "has used or intends to use" to develop or replicate certain travel patterns on the basis the records were "still preliminary in nature," and exempt from disclosure under KRS 61.878(1)(i) and (j). In addition, she argued that the Cabinet failed to explain how the cited exceptions applied to the records withheld as required by KRS 61.880(1). 1
By letter dated February 16, 2001, Ms. Villines made a second open records request for records relating to two NEPA documents ["Selection of DEIS Alternatives" and "Purpose and Need"] made available to the public by the Kentucky Transportation Cabinet and the Indiana Transportation Cabinet in connection with Ohio River Bridges Project. She stated that her request related to those underlying documents "received or prepared by your consultants in connection with these public NEPA documents." Specifically, Ms. Villines requested:
(1) All correspondence between your consultants, including Community Transportation Solutions, Inc., and The al Chalabi Group, Ltd. (ACG), and local, state, or federal agencies or other third parties pertaining to data related to socio-economic (population and employment) projections by traffic zone for the NEPA analysis for the Louisville-Southern Indiana Ohio Bridges Project.
(2) All correspondence between your consultants, including Community Transportation Solutions, Inc., and The al Chalabi Group, Ltd. (ACG), and local, state, or federal agencies or other third parties pertaining to data related to traffic volume or traffic demand studies for the Louisville-Southern Indiana Ohio Bridges Project.
(3) All correspondence, including transmittal letters, between your consultants and local, state or federal agencies or other third parties relating to the Selection of DEIS Alternatives or to the Statement of Purpose and Need, including letters soliciting comments and letters containing comments.
On February 21, 2001, Mr. Roberts responded to Ms. Villines' second request. He indicated that her blanket request for all correspondence was so broad and generic that it was "practically impossible to make a reasonable determination as to [her] request." He further advised that the consultant that possessed the requested documents was not a public agency. Addressing the documents, that had not been provided to the Cabinet by the consultant and had not been adopted into any final document, Mr. Roberts stated:
In summary, CTS has refused to disclose only two categories of documents: (1) those that are internal to CTS (and its sub-consultants) and have not been shared with KYTC and/or INDOT; and those that have been shared with KYTC and/or INDOT, but that are preliminary in nature and contain expressions of opinion or policy recommendations. Again, the former category contains a vast amount of information, in the possession of CTS or its sub-consultants, that is being gathered to prepare the Environmental Impact Statement. Because that document has not been completed or provided to the two states (other than the draft Purpose and Need Statement and the Alternatives Screening document), CTS considers all information related to that document to be confidential to CTS and not subject to the Open Records Act. That also includes coordination letters with governmental agencies concerning issues addressed in the Environmental Impact Statement that have not yet been incorporated or referenced in documents provided to KYTC and INDOT.
At this point, we do not have the authority to demand internal documents they have amassed and consider to be proprietary or confidential internal documents to be disclosed. Upon it being incorporated into a final document, then we will provide them to you. See KRS 61.878(1)(i) and 61.878(1)(j).
The latter category above includes preliminary drafts of documents, such as the Purpose and Need Statement, that have been provided to KYTC and INDOT for review and comment. Although these documents may constitute public records under the Open Records Act, they are clearly preliminary drafts and excepted from disclosure under the Act. Thus, we have not shared such documents, or any other documents or information referenced therein, with River Fields or other members of the public. However, if the underlying document (such as the November 2000 Draft Statement of Purpose and Need) has been shared with the public, we make that document and any supporting documentation available to the public.
In her letter of appeal, Ms. Villines asks this office to determine whether the responses of the Cabinet were in violation of the Open Records Act and whether factual documents that are in the possession of CTS, in performing its public contract, are public records subject to disclosure under the Open Records Act, if they are obtained or created in connection with the performance of that contract.
After receipt of the letter of appeal, both the Cabinet and CTS provided this office with responses to the issues raised in the appeal.
On April 4, 2001, Todd Shipp, Assistant General Counsel, provided a response on behalf of the Cabinet that reiterated arguments from its original response and offered the further comments:
There has been extensive public involvement in the process to date. As part of the public involvement process, CTS has distributed preliminary drafts of the Purpose and Need Statement for public input and agency comment. This release is not a requirement of the NEPA regulations. The NEPA requires that the entire Draft Environmental Impact Statement be published and available for public inspection and comment upon completion and Public Hearing. In fact, CTS has gone far beyond what is required by NEPA.
We agree that River Fields does have a right to see the land use plans and the traffic information that was relied upon in the development of the released documents. River Fields has been given full access to the project record, land use documents, traffic modeling information and correspondence with KIPDA [Kentuckiana Regional Planning and Development Agency] that concerned the model update and projection to year 2025 that were used to develop the released documents by CTS. However, nothing other than these two documents has been released.
On May 14, 2001, by letter, Mr. Shipp provided this office with additional information related to the appeal. In his letter, Mr. Shipp stated:
The Transportation Cabinet wishes to emphasize that we have fulfilled the request made by Ms. Villines on behalf of her client to the extent we are able. In our correspondence to them, we advised them to make their requests to CTS directly. This they have done as evidence[d] by the enclosed letters from Ms. Villines and CTS' attorney, Tim Hagerty. The Cabinet has worked with CTS to insure that all appropriate records have been turned over to River Fields as well as any other party requesting such documents.
Lastly, it is imperative that your office understand that this agency does not have in its possession the material she seeks. This has been indicated to Ms. Villines.
By letter dated May 15, 2001, Timothy J. Hagerty, counsel for CTS, provided this office with a response to the issues raised in the appeal. In his response, Mr. Hagerty explained, in part:
In the case of the Ohio River Bridges Project, INDOT and KYTC committed to an unusually open and inclusive process from the outset of the project. In contrast to most NEPA processes, in which the public sees no part of the DEIS until the entire document is published, the states instructed CTS to prepare early drafts of two documents - a Statement of Purpose and Need and a Selection of DEIS Alternatives report - to share with the public for early review and comment. In fact three early drafts of the Purpose and Need Statement have been shared with the public and interested government agencies, and numerous comments have been received on those documents, including detailed and lengthy comments from River Fields. While relatively unusual from a NEPA practice perspective, this early public involvement has allowed INDOT, KYTC, FHWA, and CTS to identify and address significant questions and concerns raised by a variety of agencies and interest groups.
?
While we have pursued a policy of openness, CTS has declined to share certain documents that are preliminary in nature. Because the NEPA process is so complex and data intensive--particularly with a project of the magnitude of the Ohio River Bridges Project-agencies and their consultants must be careful to prevent the premature release of information and analyses that have not been properly reviewed and verified, lest inaccurate or misleading information enter the public domain. Consequently, CTS has not made available to the public any reports, studies, data, or other information that has been prepared or obtained by CTS solely for its own internal review, or that have constituted CTS's preliminary opinions or recommendations to INDOT and KYTC concerning their efforts to satisfy the NEPA requirements. However, once documents have been "finalized" and submitted to the public for review and comment-such as the early drafts of the Purpose and Need Statement-those documents, and their supporting data and analyses, have been readily shared with the public. Moreover, once the DEIS is published, all of the supporting data and information will be made available to the public, and all interested parties, including River Fields, will have the opportunity to review and comment on the DEIS during the public comment period required by NEPA. They also will receive detailed written responses to their comments in the FEIS.
In summing up his response, Mr. Hagerty stated he had reviewed all requests for information sent to both CTS and KYTC and advised that River Fields had been provided all requested records except for information related to portions of the DEIS that have not been completed and thus have not been provided to the public for review and comment. He emphasized that CTS remained committed to make available any and all supporting data, information, and factual documents at such time as any portions of the DEIS are completed and made available to the public. He further advised that "INDOT and KYTC have instructed CTS to make available any data, information, or factual documents that support any documents or information presented to the public or relied on to make any final decisions or recommendations. "
We are asked to determine whether the responses of the Cabinet violated the Open Records Act. For the reasons that follow, we conclude that the responses were in substantial compliance with and did not constitute a violation of the Act.
First, we discuss the relationship between the Cabinet and CTS. Information supplied by the parties indicate that in 1998 KYTC and INDOT entered into an agreement setting forth each state's responsibilities regarding the preliminary work and the preparation of an Environmental Impact Statement for the Ohio River Bridges Project. Pursuant to this agreement, INDOT and KYTC, in cooperation, would select a consultant to provide services outlined in the SCOPE OF WORK. The cost of the consultant would be shared on a 50%-50% basis, with Indiana submitting to KYTC an invoice in the amount of 50% of each billing received from the consultant. Because public funds of the Commonwealth are used to reimburse INDOT, we conclude CST, a private contractor, was under contract, in part, with the KYTC.
Our decisions in open records disputes are generally limited to two questions: whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion, the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). In the appeal before us, the "custodian" of the disputed records is CTS, a company under contract with the Kentucky Transportation Cabinet. CTS cannot be characterized as a public agency for purposes of the Open Records Act. KRS 61.870(1). The disputed records themselves are not public records, as defined in KRS 61.870(2), because, at the time of the request, they were not "prepared, owned, used, in the possession of or retained by a public agency. " For the reasons that follow, we conclude that the Cabinet properly denied access to these documents under authority of KRS 61.878(1)(i) and (j).
In 00-ORD-139, p. 5, 6, we analyzed the propriety of a public agency's reliance on KRS 61.878(1)(i) and (j) as a basis for denying access to a preliminary consultant's report, observing:
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Board of Examiners of Psychologists above at 327 that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended." KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham, that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
In 00-ORD-139, we also recognized that the protections afforded by KRS 61.878(1)(i) and (j) extend to reports and analysis prepared by outside consultants on behalf of a public agency.
In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets. Because the confirmation tickets were neither possessed nor used by the Fund, we concluded that they could not be characterized as "public records" as defined in KRS 61.870(2). See also, 96-ORD-41 (holding that Department of Military Affairs properly denied request for records relating to vending services at an air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession); 97-ORD-15 (holding that the University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the document resided); 98-ORD-90 (holding that a correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
In a similar vein, the Court of Appeals has held that records of a private insurance company undergoing rehabilitation were the private records of the company despite apparent state involvement in the rehabilitation process. Kentucky Central Life Insurance Co. ex rel. Stephens v. Park Broadcasting of Kentucky, Inc., Ky.App., 913 S.W.2d 330, 335 (1996). The court expressly stated that "[t]he company's records should not lose their private status simply because the rehabilitator has used, possessed, or has access to them." Id.
This position is generally consistent with the standard articulated by the United States Supreme Court in Forsham v. Harris, 445 U.S. 169, 186, 100 S. Ct. 978, 987, 63 L. Ed. 2d 293 (1980), and Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S. Ct. 960, 969, 63 L. Ed. 2d 267 (1980). In these opinions, the Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of the [Freedom of Information Act, 5 USCS § 552]." Forsham at 63 L. Ed. 2d 305. The Court rejected the notion that a public agency's right of access, and its right to obtain custody of records, brought those records within the reach of the Act, concluding that "FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Forsham at 63 L. Ed. 2d 307.
Although we concede that Kentucky's Open Records Act does not track the language of the federal act, the laws are identical in at least one significant respect: Neither law imposes a duty on the public agency to create records. Thus, the Supreme Court's holding that "[b]y ordering [a public agency] to exercise its right of access, we effectively would be compelling the agency to 'create' an agency record since prior to that exercise the record was not a record of the agency[,]" applies with equal force to agencies governed by the Open Records Act. Forsham at 63 L. Ed. 2d 308. Accordingly, we find that Ms. Villines has not crossed the two legal thresholds identified in OAG 82-27; the custodian of the records she seeks is not a "public agency, " and the documents she wishes to inspect are not "public records. "
Assuming for the sake of argument that the disputed records held by CTS are "public records, " we would still find they were properly withheld because of their preliminary nature. Until a final report has been prepared by CTS and presented to the Cabinet, the documents retain their preliminary character. Any records adopted or made a part of the final report will be subject to public disclosure. The calculations and other information that were adopted or made a basis of the report should be made available for inspection. The public should be allowed to check the accuracy of figures and information that form the basis of a study done for a public agency and paid for by public funds. 95-ORD-14. Accordingly, we affirm the Cabinet's partial denial of Ms. Villines' request, because the records in dispute are preliminary documents and remain so until adopted into and made a part of the final report submitted to and adopted by the Cabinet.
We do note that early drafts of two documents, a Statement of Purpose and Need and a Selection of DEIS Alternatives report, along with supporting documents were made available to Ms. Villines and the public. In fact, Ms. Villines acknowledges in her letter of appeal that CST "eventually voluntarily allowed River Fields access to the materials requested from the agency." Moreover, in its April 4, 2001 response to this office, the Cabinet acknowledged that River Fields was entitled to see the land use plans and the traffic information that was relied upon in the development of the released documents and had been given full access to those records. This is consistent with the Cabinet's position that once a report has been prepared by CTS and adopted by the Cabinet, any supporting records adopted or made a part of the final report would be subject to public disclosure.
Because we affirm the Cabinet's partial denial of the documents in dispute, we need not address its additional ground that the broad sweeping requests for documents possessed by CTS and the Cabinet were not described with reasonable specificity to enable the agency to identify and located the records being sought.
However, we find that a portion of the Cabinet's response was inconsistent with the requirements of the Open Records Act. In its response to the first request, the Cabinet stated that Ms. Villines could obtain the requested land use plans and traffic information records through the respective counties in question. This response does not comport with the requirements of the Act.
In general, there is no specific exception to the Act that authorizes a public agency to withhold public records from an applicant because access to the records might more appropriately or more easily be obtained from another public agency. OAG 91-21; 99-ORD-101. An agency must state whether or not it has the requested records. If any of the requested records are exempt from disclosure, the agency must cite the exception upon which it relies and provide a brief explanation as to how the cited exception applies to the records withheld. KRS 61.880(1). The response was procedurally deficient in this regard.
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.
Judith A. VillinesStites & Harbison421 West Main StreetFrankfort, KY 40602-0634
Ed Roberts, CommissionerDepartment of Administrative Services And Custodian of RecordsTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippAssistant General CounselTransportation CabinetState Office BuildingFrankfort, KY 40601
Timothy J. HagertyFrost Brown Todd LLC400 West Market Street32nd FloorLouisville KY 40202-3363
Footnotes
Footnotes
1 In her second open records request, submitted to the Cabinet on February 16, 2001, Ms. Villines indicates that she received no response to this request to reconsider and rescind the denial of her October 25, 2000 request.
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