Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet properly relied on KRS 61.878(1)(i), (j), and (k) in denying Walton R. Haddix's February 23, 2004, request to inspect Cultural Resource Analysis, Inc.'s "files, including field notes, concerning a November 10, 2000 report about the proposed bypass in Clinton County." For the reasons that follow, we find that to the extent the requested files and notes were adopted as the basis of the November 10 report, which in turn underlay the Federal Highway Administration and Cabinet's decision to reject the eastern bypass corridor in the published Administrative Action Environmental Assessment, the Cabinet's reliance on the cited exemptions was misplaced.
In a response dated February 27, 2004, Commissioner Charles K. Hollan, Custodian of Records for the Transportation Cabinet, denied Mr. Haddix's request. Relying on KRS 61.878(1)(i) and (j), he explained that "no final agency action has occurred in this matter, and as such, the documents you have requested to inspect are considered preliminary in nature and not subject to inspection by the public." Shortly thereafter, Mr. Haddix initiated this appeal asserting that "everything done by Cultural Resource Analysis, Inc., and everything contained in their [sic] November 10, 2000 report is final." He explained that "[a] final Administrative Action Environmental Assessment report which contained the Cultural Resource Analysis, Inc., opinion was completed . . . and approved for public availability on September 25, 2003 by both the Federal Highway Administration and the Kentucky Transportation Cabinet." It was his position that the supporting files and field notes forfeited their preliminary characterization at this juncture.
In supplemental correspondence directed to this office following commencement of Mr. Haddix's appeal, Assistant General Counsel Todd Shipp, KYTC Office of Legal Services, elaborated on the Cabinet's position. He maintained that "Mr. Haddix is mistaken and confused as to where the document prepared by [Cultural Resource Analysis, Inc., a private contractor to the Cabinet,] is situated in the National Environmental Policy Act (NEPA) process." He advised:
The National Environmental Policy Act mandates that federal agencies evaluate and document the potential environmental consequences of their actions before making decisions on proposals that will involve federal funding, approvals or other significant federal involvement. See 42 U.S.C. § 4321 et seq. NEPA is a procedural statute that does not require any particular outcome, but rather seeks to ensure "informed decision-making" by federal agencies. In this case, the need for a NEPA review is triggered by the potential for federal funding of the project, as well as various potential federal permits and approvals. As the project sponsors, and pursuant to approved procedures, KYTC have been delegated responsibility by FHWA for preparing the environmental analyses and documentation required by NEPA for this project.
The general procedural requirements of NEPA have been given specific form through regulations promulgated by the federal Council on Environmental Quality ("CEQ"). See 40 C.F.R. parts 1500-1508. The CEQ regulations describe certain key milestones and specific documents that must be prepared to satisfy the NEPA process requirements.
In this case, KYTC has prepared and presented to the public the Environmental Assessment as required by NEPA. This is the first step and first major milestone in the NEPA process. It is at this point KYTC asks for public comments, which will ultimately be incorporated into a Findings of No Significant Impact (FONSI). The FONSI documents are the basis for the selection of the alternate route. The FONSI document is then presented to FHWA for final approval of the alternate route.
While KYTC has attempted to be open in this matter, the process is preliminary in nature until FHWA has given final approval to the FONSI. For this reason, KYTC has not made available any documents held within the files of Cultural Resources Analysis, Inc. (Cultural) that have been prepared or obtained by them solely for its own internal review or that have constituted Cultural's preliminary opinions or recommendations to KYTC concerning their efforts to satisfy the NEPA requirements. At this point unverified, unreviewed, potentially inaccurate or misleading information may enter the public domain. It is this information that is preliminary in nature.
In addition, Mr. Shipp argued that the requested records are exempt pursuant to KRS 61.878(1)(k) and attached in support "a FHWA memorandum regarding the release of this internal data."
Having reviewed the record on appeal, we find that the Cabinet's reliance on KRS 61.878(1)(i) and (j) was misplaced insofar as the requested records formed the basis of the November 10 report prepared by Cultural Resource Analysis, Inc., which concluded that the eastern bypass corridor was unsuitable due to the existence of an unavoidable historic site (the Upchurch farm) at the northern portion of the corridor, and that report prompted the FHWA and Transportation Cabinet to "remove [] from consideration early in the design process" the eastern bypass corridor alternative in the published Administrative Action Environmental Assessment. Further, we find that the Cabinet improperly relied on KRS 61.878(1)(k), authorizing the withholding of "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation, " because it failed to cite any applicable federal law or regulation prohibiting disclosure, relying instead on a FHWA Administrative Memorandum, dated September 25, 1985, and directed to Regional Federal Highway Administrators.
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 if 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); 00-ORD-168; compare 00-ORD-89.
In 00-ORD-89 the Attorney General was asked to review the City of Louisville's denial of a request for a memorandum prepared by the chief of police and directed to the deputy mayor concerning an internal review of an ancillary division. The City relied on KRS 61.878(1)(i) and (j), noting that the disputed document was "a preliminary, non-final, internal inter-office memorandum containing opinions and recommendations, " and we affirmed. Conversely, in 00-ORD-168 the Attorney General determined that the Purchase Area Development District improperly relied on KRS 61.878(1)(i) and (j) in resisting disclosure of a memorandum from the Department of Energy, containing post-employment opinions and advice, that was adopted by the Purchase Area Development District as the basis for a hiring decision. There, we held that the letter:
forfeited its preliminary characterization when it was adopted . . . as the basis in part of [the] decision to hire. . . . The courts and this office have long recognized that predecisional documents that are [adopted as the basis of] final agency action no longer enjoy the protection of KRS 61.878(1)[(i) and] (j).
00-ORD-168, p. 4, citing City of Louisville v. Courier-Journal and Louisville Times Co., above; University of Kentucky v. Courier-Journal and Louisville Times Co., above; see also 02-ORD18 (holding that "[t]he adopt . . . means 'to accept, appropriate, choose, or select,' Black's Law Dictionary 45 (5th ed. 1979), or '[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994) and affirming that "once . . . notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost").
Having reviewed the available documentation, we conclude that the files and notes in dispute are more closely analogous to the document at issue in 00-ORD-168 because they formed the basis of the Cultural Resource Analysis report upon which the Cabinet relied in publicly rejecting the eastern bypass corridor in its published Administrative Action Environmental Assessment, dated September 22, 2003. At page 13 of that assessment, the Cabinet states:
For the Eastern Albany Bypass corridor five build alternatives were considered, evaluated, and rejected. From the northern terminus of the eastern bypass north to KY 90, two build alternatives for US 127 were proposed. The five bypass alternative and the two that continued north to KY 90 were rejected because each impacted a historic site. A cultural resource historic surveys identified an unavoidable historic site at the northern portion of the eastern bypass corridor. According to Section 4(f) of the 1996 Department of Transportation Act, a federally funded project cannot use a historic property unless there is no prudent and feasible alternative. Consequently, a western bypass corridor was studied to avoid the historic site and was later determined to be both prudent and feasible and have no Section 4(f) involvement. Therefore, the five eastern bypass alternatives, and the two US 127 improvements from Albany north to KY 90, were rejected because they impacted a historic site that could be avoided by bypassing Albany to the west.
Because the above alternatives were removed from consideration early in the design process, they are not addressed in the following sections of this Environmental Assessment, including Section 3.0, Affected Environment and Environmental Impacts.
(Emphasis added.) In sum, the cultural resources historic survey, prepared by Cultural Resource Analysis, Inc., resulted in the rejection of the eastern bypass corridor and its "remov[al] from consideration early in the design process." The files and field notes underlying that survey (report) forfeited their preliminary characterization upon publication of the Environmental Assessment to the extent that they were "adopted by the agency as part of its action." University of Kentucky, at 378.
The otherwise inapposite September 25, 1985 memorandum from the Federal Highway Administration to Regional Federal Highway Administrators, upon which the Cabinet erroneously relies in invoking KRS 61.878(1)(k), supports, rather than undermines, this position. At page 2, the FHWA notes that:
[T]he action itself (i.e., the categorical exclusion determination, the environmental assessment, the FONSI, the draft EIA, final EIS, and Record of Decision), any memorandum made part of that action, factual documents, and reports on which it is based cannot be withheld once that action is taken and released to the public.
(Emphasis added.) Action has been taken in the form of the environmental assessment and its release to the public terminates the application of the preliminary documents exemptions vis-a-vis supporting documentation, including files and field notes, to the extent they are made a part of that action. This conclusion promotes the goal of agency accountability by enabling the public to determine why the eastern bypass corridor was rejected. Any arguable need for governmental confidentiality is, in our view, subservient to the public's right to know. Consistent with the position set forth above, the requested files and field notes underlying the November 10, 2000, report prepared by Cultural Resources Analysis, Inc., must be disclosed.
Our position is not altered by the Cabinet's invocation of KRS 61.878(1)(k). As noted, that exemption authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " The Cabinet references no specific federal law or regulation prohibiting disclosure, and the memorandum upon which it appears to rely is facially applicable only to federal highway administrators. That memorandum analyzes the availability of the exemptions to the federal Freedom of Information Act, 5 U.S.C. § 552(b), to federal officials resisting disclosure of records in federal custody or control. The single reference to records in the hands of state highway agencies, found at page 2 of the memorandum, is inapplicable to the requested records. The memorandum provides, in relevant part:
Many of the deliberations leading to an environmental decision are between FHWA and the State highway agencies (SHAs). For the purposes of Title 23, the SHAs are not considered agents of the Federal Government. However, the State can be considered a consultant for FHWA for the purpose of complying with NEPA for specific Federal-aid projects. Section 102(2)(d) of that Act explicitly permits EIS preparation by a State agency, provided that the Federal agency "furnishes guidance and participates in such preparation" and provided "the responsible Federal official independently evaluates such statement prior to its approval and adoption." In this sense, Congress has made a specific statutory provision which allows the State to serve as a consultant for FHWA. Therefore, correspondence between the FHWA and the SHA pertaining to the entire NEPA process is considered 'intragency' documentation and, if appropriate, can be protected under Exemption 5 of the FOIA.
The records in dispute in the instant appeal do not consist of "correspondence between the FHWA and [State highway agencies]," and therefore do not qualify for exclusion from public inspection under Exemption 5 of the FOIA whose protections have generally been deemed inapplicable to state records. See OAG 83-256 ("The federal statute deals with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat that statute as though it were a state statute[;] the statute makes no pretense of controlling state records, either to make them open or to make them closed"); see also, OAG 80-519; OAG 91-56; 96-ORD-244; 98-ORD-89; 01-ORD-59. Simply put:
[The Freedom of Information Act] has no force as to state records, only the records of federal agency. By invoking KRS 61.878(1)[(k)] and 5 U.S.C.A. 552(b), [KYTC has] attempted to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other.
OAG 91-56, p. 3. We therefore conclude that the Transportation Cabinet improperly relied on KRS 61.878(1)(k) in denying Mr. Haddix's request, and, as noted above, that the disputed records must be disclosed to him.
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.