Request By:
Christina Heavrin
Lynch, Cox, Gilman & Mahan, PSC
400 W. Market Street, Ste. 2200
Louisville, KY 40202James A. Hall III
Chairman
Oldham County Water District
P.O. Box 51
Buckner, KY 40010William P. Croley
Croley, Moore & Snell, PSC
P.O. Box 229
LaGrange, KY 40031
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Oldham County Water District violated the Open Records Act in partially denying the request of Christina Heavrin to inspect "all of the records in the possession of the Oldham County Water District and/or any Oldham County Water District officer or employee concerning or relating in any way to:
1) the proposed expansion of the Oldham County Water District including, but not limited to, records concerning the construction of a Water Tower and property acquisition;
2) the proposed natural gas-fired electric power generation facility to be built by Bluegrass Generation Company, L.L.C. at the Oldham County Business Park;
3) Dynegy Bluegrass Generation Company, now known as or doing business as Dynegy Midstream Services, L.P., Dynegy Clec Communications, Inc., Warren Petroleum Company, L.P.
By records, I mean all books, papers, minutes, correspondence, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, prepared, owned, used, in the possession of or retained by you.
If you do not have custody or control of the records requested, please furnish me with the name and location of the official custodian of your public records."
Responding to Ms. Heavrin's request, William P. Croley, counsel for the District, by letter dated November 6, 2001, advised her that because the District's secretary was on vacation, that several employees and commissioners were involved in rate hearings, and that many of the requested letters were in storage, inspection would not be available within the three-day period provided by statute. However, Mr. Croley, in pertinent part, further advised:
Because of the foregoing, I am asked to advise you that the records which you would be permitted to inspect or copy, which are not exempt pursuant to KRS 61.878, will be made available, subject to any applicable statutory provisions, on or after November 15, 2001.
I will note from a cursory review of the attachment to your letter of November 2, that certain matters which you request appear to fall clearly within the exempted purview of KRS 61.878(1) and specifically, but without limitation, KRS 61.878(1)(e).
In her letter of appeal, dated November 6, 2001, Ms. Heavrin indicated she had no complaint about the time needed to gather the requested records. However, she challenges the District's denial of part of her request. In her letter, she states:
First, the denial was deficient under KRS 61.880(1) in that Mr. Croley did not identify which records were being denied to me nor did he offer an explanation as to how those records fall under the exception he cited, KRS 61.878(1)(e).
Furthermore, none of the records requested fall into the category of records exempt from inspection under KRS 61.878(1)(e), which subsection concerns the regulation or supervision of financial institutions.
After receipt of Notification of the appeal and a copy of Ms. Heavrin's letter of appeal, Mr. Croley provided this office with a response to the issues raised in the appeal. In his response, Mr. Croley advised:
Please be advised that the undersigned counsel for the Oldham County Water District is responsible for an incorrect reference in his own letter to KRS 61.878(1)(e). The intended statutory reference was to KRS 61.878(1)(f). The subsection to which the undersigned intended to refer deals specifically with appraisals and studies anticipatory to the acquisition of property. Had this reference been made correctly, I believe that Ms. Heavrin would have understood its intention. Understandably with the reference to KRS 61.878(1)(e), confusion was created.
?
It was and is the undersigned's belief that any matters relating to the proposed acquisition of the property are not yet discoverable by the applicant other than as may be available to them through the condemnation action. It is for this reason that the undersigned in his letter dated November 6, 2001, suggested that certain matters (meaning those which might involve the condemnation action) might not be available pursuant to an open records request.
We are asked to determine whether the response of the Water District violated the Open Records Act. For the reasons that follow, we conclude that the Water District violated the Open Records Act by failing to identify the records which were to be withheld from inspection and citing the exception upon which it relies in denying access.
In the instant case, the Water District advised Ms. Heavrin that some of the requested records might be exempt from disclosure under KRS 61.878(1). However, it failed to identify what records were being withheld from inspection. This office has held that an agency, pursuant to KRS 61.880(1), must identify any records withheld from inspection and cite the exception upon which it relies. 99-ORD-155.
In 97-ORD-41, at p. 6, this office stated:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U. S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
As Mr. Croley explained in his supplemental response, he had inadvertently mis-cited a possible exception that possibly could come into play, KRS 61.878(1)(f), dealing with real estate appraisals and acquisition of property. Although the Water District cited the exception under which certain records pertaining to appraisals and studies anticipatory to the acquisition of property might fall, it failed to identify the documents being withheld under KRS 61.878(1)(f) or any other records that were being withheld under other applicable exceptions of KRS 61.878(1).
Thus, it is the decision of this office that the failure of the Water District to identify what records were being withheld from inspection and to cite the exception(s) upon which it relied in doing so, violated the Open Records Act. Accordingly, the Water District should identify the records being withheld and cite the applicable exception under KRS 61.878(1) that supports such action.
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.