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 Transportation Cabinet's denial of Wayne Hatchett's request for "skid trailer skid numbers for the state and federal asphalt surfaced highways located in districts 1 and 2" violated the Open Records Act. We conclude the Cabinet's denial was a violation of the Act.
By letter dated October 8, 2001, Mr. Hatchett requested:
I would like to request the skid trailer skid numbers for the state and federal asphalt surfaced highways located in districts 1 and 2. I am interest[ed] in skid numbers from 1987 thru August 2001.
By letter dated October 23, 2001, Mr. Hatchet submitted a second request, asking, in pertinent part:
I would like to request skid numbers for asphalt surfaced highways located in the first and second districts.
I have an aggregate consulting service and have clients located in Tennessee and Kentucky that have aggregate reserves. It would be helpful to see how aggregate from other sources are performing in regular and super pave mixes.
?
I am not involved with an attorney or any litigations and the information that I receive will be useful in asphalt mix designs and other engineering.
By letters dated October 12, 2001 and October 29, 2001 respectively, the Cabinet denied each request "according to 23 USC Section 409 which prohibits the release of this information," and KRS 61.878(1)(k), which authorizes the nondisclosure of "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. "
After receipt of Notification of Mr. Hatchett's appeal of these denials and a copy of his letter of appeal, Todd Shipp, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Shipp advised:
In response to the above-referenced appeal, this agency denied Mr. Hatchett's request pursuant KRS 61.878(1)(k), which provides that all public records or information the disclosure of which is prohibited by federal law or regulation not be disclosed. Specifically, skid numbers are obtained from surveys carried out for accident investigations and skid resistance inventories. These programs are designed to identify existing roads whose deficiency is lack of adequate skid resistance as mandated by the National Highway Safety Act of 1968. The federal law that prohibits such release is 23 USC Section 409, which prohibits the discovery of such reports. Mr. Hatchett has advised that he is not an attorney nor involved in litigation, but it is the position of this agency that this law would prohibit release to all parties. There is simply no way to guarantee or make assurances that he could someday use this material, as an expert or consultant, against this agency.
Lastly, the release of skid numbers will then generate requests for the preliminary interpretations and preliminary applications of the skid numbers of this Cabinet's surface selection guidelines and Resistant Course Guidelines which has long been considered an internal preliminary guideline viewed as a proprietary and confidential document. It is without question that to release would violate KRS 61.878(1)(j).
To release this information would compromise this important program and the federal mandate of nondisclosure.
We are asked to determine whether the Cabinet's denials constituted a violation of the Open Records Act. For the reasons that follow, we conclude that they did.
The Cabinet denied Mr. Hatchett's request for the skid test surveys under authority of 23 U.S.C. Section 409, in tandem with KRS 61.878(1)(k).
KRS 61.878(1)(k) authorizes the nondisclosure of:
All public records or information the disclosure of which is prohibited by federal law or regulation.
23 U.S.C. Section 409 provides:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or other data compiled or collected for the purpose of identifying[,] evaluating, or planning safety enhancement of potential accident sites, hazardous roadway condition, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.
The Cabinet argues that, although Mr. Hatchett is not an attorney nor involved with litigation, 23 U.S.C. Section 409 prohibits release to all parties. In support of this position, the Cabinet states "[t[here is simply no way to guarantee or make assurances that he could someday use this material, as an expert or consultant, against this agency."
We disagree. In 94-ORD-124, this office held that 23 U.S.C. Section 409 does not bar the disclosure of the information for purposes unrelated to litigation and concluded that the Transportation Cabinet improperly denied a request under authority of 23 U.S.C. Section 409 and KRS 61.878(1)[k]. In reaching that conclusion, we stated, at pp. 5-7:
By its express terms, 23 U.S.C. 409 applies to "law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying[,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, . . . or for the purpose of developing any federal highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds . . . ," and provides that these records "shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages . . . ." The scope of the federal statutory prohibition is thus relatively narrow. It does not authorize a public agency to adopt a policy of blanket nondisclosure relative to such records. Our analysis of existing caselaw suggests that the issue of disclosure has only arisen in the context of civil litigation. This, in turn, suggests that the statute was not intended to operate as an absolute bar to disclosure.
That Cabinet acknowledges that 23 U.S.C. 409 was enacted "to prohibit federally required record-keeping from being used as a 'tool . . . in private litigation.'"Light v. State, 149 Misc.2d 75, 560 N.Y.S.2d 962, 965 (Ct.Cl. 1990). It is instructive, however, to examine the entire text of the quotation from which this language is extracted. The New York Court of Claims recognized that:
Light, supra at 965. Thus, "[t]o facilitate candor in administrative evaluations of highway safety hazards, 23 U.S.C. Section 409 prevents a court from receiving records of such evaluations into evidence." Duncan v. Union Pacific Railroad Company, Utah App., 790 P.2d 595, 597 (1990). (Emphasis added.) It does not prevent disclosure of the information for purposes unrelated to litigation.
We attach significance to Congress's particular choice of words. Had Congress intended the statutory prohibition to have broader scope, it could have erected an absolute bar to disclosure. We must assume that Congress purposely employed the narrower terms. 94-ORD-19. Moreover, we do not share the Cabinet's concern that "if the information is available under the Open Records law, it will be impossible for the Cabinet to keep the information from being discovered or introduced as evidence." 23 U.S.C. 409 does erect an absolute bar to the discovery or admission into evidence of the information encompassed by 23 U.S.C. 409. Parties are not entitled to introduce evidence of inadmissible data even if it is obtained from an indirect, secondary source. See e.g., Robertson v. Union Pacific Railroad Company, 954 F.2d 1433 (8th Cir. 1992).
Although the information is available for other uses and purposes, the statute's mandatory language requires the exclusion of such evidence at trial. Id.
In 94-ORD-124, the requester had advised the Cabinet that the information would not be used "for discovery in a federal or state court proceeding or in an action for damages, but would instead be used to assist her client 'in [assessing] the installation of a safe railroad crossing [,]' and thus to promote railroad safety." Likewise, Mr. Hatchett, in his request, dated October 23, 2001, advised the Cabinet that he is "not involved with an attorney or any litigations and the information that I receive will be useful in asphalt mix designs and other engineering."
Addressing the Cabinet's concern that the information could be used in litigation against the agency in the future, we stated in 94-ORD-124, "23 U.S.C. 409 does erect an absolute bar to the discovery or admission into evidence of the information encompassed by 23 U.S.C. 409. Parties are not entitled to introduce evidence of inadmissible data even if it is obtained from an indirect, secondary source."
Thus, under the facts of this appeal, we find that 94-ORD-124 is controlling and conclude that the Cabinet improperly denied Mr. Hatchett's request, under authority of 23 U.S.C. Section 409 and KRS 61.878(1)(k), and should make the requested documents available for his inspection.
Because the foregoing is dispositive of this appeal, we need not address other arguments raised by the Cabinet in its response to the letter of appeal.
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.
Wayne HatchettP.O. Box 194Hardin, KY 42048
Ed RobertsTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippAssistant General CounselTransportation CabinetState Office BuildingFrankfort, KY 40601