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 responses of the City of Pewee Valley to the open records request of Chris Carpenter violated the Open Records Act. For the reasons that follow, we conclude that the responses by the City did not violate the Act.
At issue in this appeal is the City's response to Mr. Carpenter's request for the following records:
(1) Findings of each of two consultants, Dick Comi and James Wagner, whom the city of Pewee Valley consulted in regards to a possible cell tower in Pewee Valley. Including, but not limited to, cell tower location.
(3) Any correspondence between the city of Pewee Valley and its consultants.
(5) Any correspondence between the city of Pewee Valley and either Crown Castle or Cingular Wireless regarding a possible cell tower in Pewee Valley.
Responding on behalf of the City, Jim Kincer, Mayor denied Mr. Carpenter's request for these records, stating:
Requests number one (1) and three (3) are denied pursuant to Kentucky Revised Statute (KRS) 61.878(1)(c) , (i) and (j). Request number five (5) is denied pursuant to KRS 61.878(1)(c). [See also the Open Records Decision of the Office of the Attorney General, 01-ORD-222, which has addressed similar request recently made to the City.]
As a result of this response, Mr. Carpenter initiated the instant appeal to this office.
After receipt of the Notification and a copy of the letter of appeal, John Frith Stewart, City Attorney, provided the office with a response to the issues raised in the appeal. Elaborating on Mayor Kincer's response, Mr. Stewart explained in relevant part:
In compliance with Kentucky Revised Statute (KRS) 61.880(1), the City's response stated that the records requested in items number one and three were denied pursuant to KRS 61.878(1)(i) and (j). Requests number one and three concerned findings and correspondence about the cell tower as prepared by the City's consultants, Dick Comi and James Wagner and/or the City.
Mr. Stewart explained that Dick Comi and James Wagner were consultants for the City and, citing KRS 61.878(1)(i) , argues that "any correspondence between the City and its consultants concerning the cell tower is necessarily preliminary in nature, as no final action has been taken by the City with respect to the proposed cell tower. "
Additionally, Mr. Stewart, relying upon KRS 61.878(1)(j), argued that the records requested by Mr. Carpenter are exempt as preliminary recommendations to the City and preliminary memoranda. In his response, he states:
Here, Carpenter has requested access to records that are clearly preliminary recommendations to the City and preliminary memoranda. Expert opinions are expressed in those findings. The whole point of the study undertaken by the consultants, for the City, is to formulate opinions and recommendations in support of the City's policy position concerning the proposed cell tower. Such recommendations are exempt from disclosure.
Disclosure of these matters would be detrimental to the "on again, off again" negotiation process underway with Crown Castle, Inc. and Cingular Wireless. Your office is well aware of the controversy surrounding the siting of this proposed cell tower, and the difficulties that have been encountered in this negotiation process.
In the alternative, Mr. Stewart cites KRS 61.878(1)(c) as authority for denying requests for items one, three, and five. In support of this position, Mr. Stewart argues:
In addition, any and all reports and/or correspondence between the consultants and the City were provided or obtained by the consultants as agents for the City. Any information obtained from Crown Castle, Inc., and/or Cingular Wireless, by consultants, was proprietary in nature and disclosure of that information would violate the confidential nature of that information. Disclosure of this information would cause the City, Crown Castle, Inc. and/or Cingular Wireless to suffer an unfair disadvantage if this information is disclosed to competitors. Release of this information to Carpenter, or anyone else, would cause irreparable harm.
The City denied Carpenter access to the records requested in item number five pursuant to KRS 61.878(1)(c) and cited to Open Records Decision 01-ORD-222, In re: Kyle T. Hubbard/City of Pewee Valley. Under KRS 61.878(1)(c), "records confidentially disclosed to an agency or required to be disclosed by 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 upon order of the court. Because the content of any correspondence between the City and either Crown Castle or Cingular Wireless is proprietary in nature, and open disclosure of these records would permit an unfair advantage to competitors of Crown Castle, and/or Cingular Wireless, Carpenter's request was properly denied.
In 01-ORD-222, Kyle T. Hubbard requested of the City of Pewee Valley the opportunity to inspect:
Your office affirmed the City of Pewee Valley's denial of Hubbard's request, relying on KRS 61.878(1)(c). For the same reason, Carpenter's request to review correspondence between the City and Crown Castle, Inc., or Cingular Wireless, was also properly denied.
We are asked to determine whether the City's denial of Mr. Carpenter's request for the records in question violated the Open Records Act. For the reasons that follow, we conclude it did not.
We address first the requests for items number one and three, i.e., the requests for the findings of the consultants and correspondence between the City and the consultants. The City explained in its supplemental response to this office that the records responsive to items one and three consisted of correspondence between the City and its consultants concerning the cell tower and that the consultant's findings contained expert opinions and preliminary recommendations concerning the proposed cell tower. Because no final action had been taken with respect to the cell tower, the City denied access to these records under authority of KRS 61.878(1)(i) and (j). These provisions authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
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. 00-ORD-139; 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).
These 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. See, e.g., 94-ORD-118 and 93-ORD-125.
On numerous occasions, this logic has been extended to reports and analyses prepared by outside agencies, as well as consultants, on behalf of a public agency. These decisions are summarized in 93-ORD-125, affirming the Transit Authority of River City's denial of a request for a Coopers & Lybrand report, evaluating the performance of Yellow Enterprise under its agreement with TARC, as a preliminary record upon which final action had not been taken. At pages 6 and 7, we recounted:
[I]n OAG 82-450, we held that a "Development Potential Analysis" prepared for Jefferson County by the Real Estate Research Corporation was exempt from public inspection under KRS 61.878(1)(j). At page 2 of that opinion we held:
Similarly, in OAG 84-337, we held that a completed report of SRI International of Menlo Park, California, on plans for future economic development in Louisville was excluded from public inspection because it contained opinions and recommendations which the public agency could accept or disregard in taking final action. In OAG 85-96, we reached the same conclusion, holding that a feasibility report on the construction of a high-rise office building prepared by Coldwell Realty under a contract with the City of Louisville could properly be withheld pursuant to KRS 61.878(1)(j) since it was preliminary in nature, "setting forth opinions and recommendations for review and consideration by the city." OAG 85-96, at p. 3. Finally, in OAG 88-60, we held that a public official properly denied a request to inspect a draft audit prepared by the E.P.A. and sent to the City of Owensboro, pursuant to KRS 61.878(1)(i) and (j), insofar as the audit was a preliminary report containing opinions and observations.
Accordingly, we conclude that, because no final action had yet been taken, the City properly denied access to items number one and three, i.e., the requests for the findings of the consultants and correspondence between the City and the consultants, under authority of KRS 61.878(1)(i) and (j). These records retain their preliminary character until such time as they are adopted and made a part of final agency action regarding the cell tower.
We address next the City's denial of request item number five, i.e., any correspondence between the City and either Crown Castle or Cingular Wireless regarding a possible cell tower in Pewee Valley, under authority of KRS 61.878(1)(c).
In 01-ORD-222, the requester sought to inspect the following records from the City of Pewee Valley:
In the instant case, Mr. Carpenter requested to inspect in item number five:
Any correspondence between the city of Pewee Valley and either Crown Castle or Cingular Wireless regarding a possible cell tower in Pewee Valley.
In upholding the City's denial of the request for the same or substantively similar information, in 01-ORD-222 this office concluded that correspondence exchanged between the Mayor and representatives of Crown Castle and Cingular was properly excluded under KRS 61.878(1)(i) and (j) as it qualified as a "written exchange between the Mayor 'under conditions in which the candor of the correspondents depends on assurances of confidentiality', and preliminary recommendations in which opinions were expressed or policies formulated and KRS 61.878(1)(c), because disclosure of records and information confidentially disclosed to the City would permit an unfair advantage to competitors of Crown Castle and Cingular Wireless.
Accordingly, we believe that 01-ORD-222, and the authorities cited therein, is controlling on the issues raised in request item number five and conclude that the City's denial in this regard did not violate the Open Records Act. A copy of 01-ORD-222 is attached hereto and incorporated by reference.
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.