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 Governor's Office of Agricultural Policy (OAP) violated the Open Records Act in denying L. T. Newton's August 2, 2004, request for "a copy of an application that was submitted by Mr. Tommy Fulkerson for tobacco diversification money to start some sort of business in Pellville." For the reasons that follow, we find that the OAP failed to meet its statutory burden of proof in denying Mr. Newton's request.
In a response dated August 3, 2004, OAP General Counsel Catherine Ball advised:
This request is denied on the basis that this information is not deemed a "public record" pursuant to KRS 61.878(2)(a) [sic], which states:
OAP did not explain how the cited exception applies to the records withheld, or avail itself of the opportunity to supplement its denial upon receipt of this office's August 18, 2004, "Notification to Agency of Open Records Appeal." In the absence of proof that the disputed application was submitted under terms of confidentiality and contains information that is generally recognized as confidential or proprietary, we cannot affirm OAP's position.
The General Assembly has declared "that the basic policy of KRS 61.870 to 61.884 is 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 . . . ." KRS 61.871. Consistent with this policy, the General Assembly has assigned the burden of proof to the public agency in an open records appeal to this office or the circuit court. KRS 61.880(2)(c); KRS 61.882(3). The Attorney General is thus bound by a rule of strict construction in interpreting the exceptions to the Open Records Act, and all doubts must be resolved in favor of disclosure.
As noted above, KRS 61.878(1)(c)2.a. authorizes nondisclosure of:
2. [R]ecords confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
To successfully raise this exception, a public agency must establish that the records withheld: (1) are confidentially disclosed to the agency or required by the agency to be disclosed to it; (2) are generally recognized as confidential or proprietary; and (3) are compiled and maintained in conjunction with an application for or the administration of a loan or grant. It appears that the disputed record satisfies the third part of this three part test in that it was submitted to the OAP as an application for diversification funds. The question before us, then, is whether the application was confidentially disclosed to OAP and contains information that is generally recognized as confidential or proprietary. On this issue, the OAP is silent.
KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. OAP discharged this duty. KRS 61.880(1) also requires public agencies electing to withhold all or any portion of a public record to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing this provision, the Kentucky Court of appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although the OAP included a statement of the exception arguably authorizing nondisclosure, it did not provide a brief explanation of how the exception applies to the record withheld, much less "particular and detailed information in response to [the] request." In its original response, OAP produced no proof that the disputed application was confidentially disclosed to it or that it contains information that is generally recognized as confidential or proprietary. Shortly thereafter, Mr. Newton initiated this open records appeal.
On August 18, 2004, the Attorney General issued notification of receipt of Mr. Newton's appeal to OAP pursuant to 40 KAR 1:030 Section 2. That notification clearly states that "the agency may respond to this appeal," and further states that the response "must be received no later than Tuesday, August 24, 2004." To date, the Attorney General has received no supplemental response from OAP to substantiate its position that the requested application was confidentially disclosed to it and contains information that is generally recognized as confidential or proprietary. Having reviewed the statutes governing distribution of diversification funds, we find no provision affording confidentiality to such records.
In 02-ORD-86, this office determined that the Fayette County Rural Land Management Board failed to meet its statutory burden of proof in denying a request for Purchase of Development Rights applications. At page 10 of that decision, we observed:
The Board presents no proof that the . . . information is generally recognized as confidential or proprietary. It is not enough that the applications were submitted in conjunction with an application for a grant. The Board has the burden of establishing that the applications were confidentially disclosed and are generally recognized as confidential or proprietary. KRS 61.880(2)(c); see 99-ORD-99; 00-ORD-117. It has not met this burden of proof.
Extending the reasoning in 02-ORD-86 to the appeal before us, we conclude that OAP has not met its burden of proof in denying Mr. Newton's request.
We do not mean to suggest that a successful case cannot be made that certain information appearing on the application is exempt under KRS 61.878(1)(c)2.a., only that OAP has not made the case here. If the basis for denying access to that information can be articulated in terms of the three part test codified in that exception, the OAP may withhold that information after providing Mr. Newton with particular and detailed written information in this regard. The OAP cannot, however, in our view, reasonably assert that the entire application is exempt. Accordingly, pursuant to KRS 61.878(4), 1 OAP is obligated to redact those portions for which it articulates a written statutory basis and explanation and release the remainder. In failing to so articulate the basis for nondisclosure relative to those portions of the application that are properly excludable, and in failing to release the nonexempt portions of the application per KRS 61.878(4), the OAP violated the Open Records Act. Accord, 95-ORD-107.
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.
L. T. Newton905 Ed Brown RoadHawesville, KY 42348
Catherine H. BallGeneral CounselGovernor's Office of Agricultural Policy404 Ann StreetFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.