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 City of Pewee Valley violated the Open Records Act in the disposition of Kyle T. Hubbard's October 9, 2001 request to inspect:
Records related to the Crown Castle [cellular tower] proposal, or any entity affiliated with Crown Castle . . . [in the possession of the Mayor of the City of Pewee Valley or] any council member, clerk, or City Attorney[, including] correspondence, documents, plans, maps, applications, footprints for the tower, and any other records which have been received from Crown Castle, or submitted by the City to Crown Castle.
For the reasons that follow, we affirm the City's denial of Mr. Hubbard's request.
In a letter dated October 15, 2001, Pewee Valley City Attorney John Frith Stewart offered the following explanation for the City's denial of the request:
Under KRS 61.878(1)(c), "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 advantage to competitors of the entity that disclosed the records" are exempted from inspection except on order of the court. Because any records that have been received from Crown Castle by the City are proprietary in nature, and open disclosure of those records would permit an unfair advantage to competitors of Crown Castle, your request is denied.
Under KRS 61.878(i), "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" is also exempted from open inspection except on order of the court. Because any records submitted by the City to Crown Castle represent correspondence with a private individual, your request to inspect records of this nature is also denied.
Shortly thereafter, Mr. Hubbard initiated this appeal.
In a supplemental response directed to this office following commencement of the appeal, Mr. Stewart elaborated on the City's position. He explained:
Crown Castle International Corp. owns and operates shared wireless communications and broadcast infrastructures in the United States, United Kingdom, Australia and Italy. Crown Castle proposed to erect a 180-foot tower on land leased to Cingular Wireless by Salem Assembly of God Church, in Pewee Valley, Kentucky. The site was selected by Cingular and it will be leasing space from Crown Castle if this tower is built. Cingular did all of the engineering studies and has shared this information with Crown Castle.
The public outcry in response to this proposal has been substantial. The Mayor of Pewee Valley, Jim Kincer, has been negotiating with Crown Castle in an effort to persuade Crown Castle to consider an alternative location for the proposed cellular tower. Crown Castle is cooperating with the City to find a location that is more suitable - one that the public would find more suitable.
Emphasizing that "the effectiveness of a cellular tower is directly related to its proper siting, " Mr. Stewart indicated that engineering studies have been conducted at Cingular's expense "for the purpose of identifying effective siting options for the proposed tower, " and at the City's expense "to assist in finding alternative sites for the proposed cellular tower, " but that to date no applications or permits have been filed "in furtherance of Crown Castle's plan to erect the proposed tower. " It is the City's position that any correspondence, documents, plans, maps, applications, footprints for the tower, and any other records which have been received by the City from Crown Castle were confidentially disclosed to the City, are generally recognized as confidential or proprietary, and that disclosure of any of these records would permit an unfair commercial advantage to Cingular's and Crown Castle's competitors.
With reference to records submitted by the City to Crown Castle, Mr. Stewart explained that the parties are engaged in ongoing discussions "to find a location that is more suitable - one that the public would find more suitable. " Invoking KRS 61.878(1)(i), he maintained that "everything here is preliminary or proposed," and stressed the importance of "[m]aintaining open and respectful communication with Crown Castle . . . ." Mr. Stewart distinguished this office's decisions in 00-ORD-98, holding that the Finance and Administration Cabinet improperly relied on the cited exemption in withholding correspondence with a contractor under a public contract concerning performance of the contract, and 99-ORD-220, holding that the Kentucky Racing Commission improperly relied on the cited exemption in denying a request for applications for racing licenses, noting that neither Crown Castle nor Cingular is a contractor with a governmental agency, and that the correspondence they exchange with the City carries no expectation of favorable action by the City that will inure to their benefit. In closing, he observed,
The people with whom the City has, or may, correspond concerning this proposed cellular tower are private individuals. While these people represent corporations, any correspondence "tendered by [or to] private entities or individuals" would be exempt from disclosure under these circumstances. There is not contractual privity between the City and these individuals and there have been no expectations represented upon which any of these individual representatives may rely. Put simply, the decisions made in OAG 00-ORD-98, and the cases cited therein, are distinguishable from the case under consideration on their facts.
Mr. Stewart attached a letter signed by Mayor Kincer verifying the truthfulness of the statements contained in the City's response.
To facilitate our review of Mr. Hubbard's appeal, this office requested copies of the disputed records, under authority of KRS 61.880(2)(c), in a letter to Mr. Stewart dated October 29, 2001. Those records were transmitted to this office on November 5, 2001, and generally consist of e-mail communications between Mayor Kincer and representatives of Crown Castle and Cingular. The records also include two maps generated by Cingular for Crown Castle and furnished to the City. In a conversation with Mr. Stewart's associate, Stephen Emery, we have confirmed that all responsive records have been disclosed to this office, and that the City does not possess, and has no knowledge of, any proposals, applications or permits, any correspondence other than the e-mails, any other maps or plans, any engineering studies conducted at Cingular's expense or the City's expense, and any correspondence with property owners regarding the use of their land as an alternative site. With reference to the maps generated by Cingular, Mr. Emery explained that they reflect the results of its engineering studies, relate to proper siting of a cellular tower, and were disclosed to the City under terms of confidentiality. He indicated that disclosure of the results of the studies would permit an unfair commercial advantage to Cingular's and Crown Castle's competitors by enabling them to ascertain the most desirable tower site zone without incurring the costs customarily associated with engineering and feasibility studies. Having reviewed the disputed records, and in light of Mr. Emery's comments, we affirm the City of Pewee Valley's denial of Mr. Hubbard's request.
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).
Guided by these principles, as well as an evolving body of case law, the Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only after they are adopted by the agency as part of its final action.
City of Louisville v. Courier-Journal and Louisville Time, Ky. App., 637 S.W.2d 2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983);
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992); 99-ORD-206; compare 00-ORD-168. The latter open records decisions reflect the Attorney General's commitment to implement the intent of the General Assembly in carving out these exemptions. This office has frequently noted that KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency.
In denying Mr. Hubbard access to the e-mail transmissions exchanged by Mayor Kincer and representatives of Crown Castle and Cingular, the City relied on KRS 61.878(1)(i) which excludes from public inspection:
In an early open records opinion construing this provision, the Attorney General observed:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2. In a more recent decision, this office dissected the language of the exemption:
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory. . . ."[A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. Resolution of this appeal turns on the issue of whether the records withheld qualify for exclusion from public inspection as preliminary drafts, notes, or correspondence with a private individual
In 99-ORD-206, we affirmed the Department of Insurance's denial of a request for, inter alia, e-mail communications, concluding that they consisted of preliminary drafts and notes. Although the e-mails in dispute in 99-ORD-206 could not properly be characterized as correspondence with private individuals, we believe that this portion of the exemption is also applicable to the e-mails withheld in the instant appeal. The records clearly qualify as a written exchange with a public official "under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2. In addition, these e-mail transmissions would arguably constitute "preliminary recommendations . . . in which opinions are expressed or policies formulated . . . ." within the meaning of KRS 61.878(1)(j). In short, we concur with the City of Pewee Valley in its view that "everything here is preliminary or proposed." If, of course, the opinions expressed or policies formulated in the exchange are ultimately adopted as part of the City's final action relative to relocation of the cellular tower, they will forfeit their preliminary characterization.
Turning to the City's invocation of KRS 61.878(1)(c)1. as the statutory basis for denying Mr. Hubbard access to the maps generated by Cingular and shared with the City under terms of confidentiality, we again affirm the City's actions. KRS 61.878(1)(c)1. provides:
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 if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.
This office has consistently recognized that in order to qualify for exclusion 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.
See, e.g., 96-ORD-135; 97-ORD-66; 97-ORD-132. On at least two occasions, the Kentucky Supreme Court has analyzed this provision, concluding that the public agencies, which had invoked it on behalf of a private entity, met their statutory 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.
The record before us supports the City's position that the maps generated by Cingular were confidentially disclosed to the Mayor, are generally recognized as confidential or proprietary, and that their disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them. The City asserts that proper siting is critical to the effectiveness of a cellular tower, and indicates that disclosure of the maps would enable competitors to ascertain the site location zone identified by Cingular and Crown Castle, based on engineering studies conducted at their expense, as the most desirable without undertaking their own studies and incurring their own costs.
As in Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d 195, 199 (1997), we find that the maps were submitted under terms of confidentiality, are generally recognized as confidential or proprietary, "and that disclosure to competitors would give them substantially more than a trivial unfair advantage . . . ." Accordingly, we conclude that these records are protected from disclosure. See also, 92-ORD-1134 (affirming City of Paducah's denial of request for proposal for 800MHZ trunked radio communication system that included site selection, charts, maps, and diagrams prepared by private entity, on the basis of KRS 61.878(1)(b) [now 61.878(1)(c)1.]).
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 proceedings.