Request By:
David A. Smith
Yeiser's Warehouse
P.O. Box 865
Owensboro, KY 42304Maurice Owen
Owensboro Riverport Authority
P.O. Box 21955
Owensboro, KY 42304Charles Kamuf
Kamuf, Yewell, & Pace
221 West 2nd Street
Owensboro, KY 42303
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Owensboro Riverport Authority (Riverport) failed to meet its statutory burden of proof in sustaining its partial denial of David A. Smith's request under authority of KRS 61.878(1)(c)1. We believe that 03-ORD-064, and the authorities cited therein, is controlling as it addresses the identical issue presented in the instant appeal, and we remand this matter back to the public agency with directions that it issue a new response to Mr. Smith's request, consistent with guidelines and authorities set forth in 03-ORD-064, within three days after receipt of the remand.
Addressing an additional issue raised in the instant appeal, we find that the Riverport's position that certain information contained in its contracts with its private customers is confidential and cannot be disclosed because of confidentiality agreements in those contracts, is misplaced.
In 95-ORD-14, we considered a public agency's argument that it could not disclose certain information due to a clause in its contract with a private engineering company that prohibited release of that information without the company's consent and held that the Open Records Act does not allow public records to be exempted from disclosure by contract. They must be exempt by a statutorily recognized exemption. In reaching this conclusion, we stated:
In OAG 83-256, we held that an agency can promise confidentiality as far as the permissive exemptions permit, and such a promise should be honored. In OAG 88-1, we held that a promise of confidentiality could be honored as long as it was not inconsistent with the provisions of the Open Records Act.
In OAG 90-7, this office opined that a contractor to a governmental agency must accept certain necessary consequences of involvement in public affairs. Such a contractor runs the risk of closer public scrutiny than might otherwise be the case.
The denial in this case does not state that the calculations and other documents incorporated in American Engineering's report constitutes confidential or proprietary information. Moreover, the Open Records Law does not allow public records to be exempted from disclosure by contract. They must be exempt by a statutorily recognized exemption.
As we noted in OAG 83-256, at p. 4:
A public agency cannot abrogate the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884. A public agency can, as was done in the case of the RFP discussed herein, promise confidentiality as far as the permissive exemptions permit and such a promise should be honored.
Based on the foregoing, the Open Records Act does not allow public records to be exempt from disclosure by contract. Accordingly, we find the Riverport's argument that it could withhold certain information in the contracts under a confidentiality agreement alone is misplaced. If they are exempt from disclosure, it must be under the authority of a statutorily recognized exemption, such as KRS 61.878(1)(c)1., or other applicable exception set forth in KRS 61.878(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 proceeding.