Request By:
Timothy D. Mefford
303 North College Street
Franklin, KY 42134-2113Records Custodian
Edmonson County Industrial Authority
P. O. Box 353
Brownsville, KY 42210Marc A. Lovell
Harlin Parker
P. O. Box 390
Bowling Green, KY 42102
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Edmonson County Industrial Authority violated the Kentucky Open Records Act in denying the request of Timothy D. Mefford for copies of the rules and regulations promulgated by the Authority in accordance with the Act, minutes of meetings held by the Authority from January 2000 to the present, all signed contracts between Dennis Griffin and the Authority, and eight other categories of financial and operational records maintained by the Authority. Based upon the evidence of record, this office concludes that the Authority's response is both procedurally deficient and contrary to governing precedent.
In a letter dated June 3, 2005, Mr. Mefford requested copies of the following public records:
(1) Copy of rules and regulations promulgated by [the Authority] in conforming with the provisions of KRS 61.870 - 61.884 to provide full access to public records. See KRS 61.876.
(2) Signed and approved minutes of all meetings of the [Authority] from January of 2000 through [] the present time.
(3) Copies of all signed contracts between Dennis Griffin and the [Authority].
(4) Copies of all documents between Jasco and the [Authority].
(5) Copies of all documents between Yahagi and the [Authority].
(6) Copies of all documents between Fire One, Inc. and the [Authority].
(7) Copies of all documents regarding sales or potential sales of the building currently occupied by Yahagi.
(8) Copies of all checks showing payments to Dennis Griffin as payee.
(9) Copies of any documents showing a payment to Roy White during the past five years.
(10) Copies of all documents showing all payments made to Holland CPA and/or Lanny White for any and all accounting services.
(11) Copies of all checks written to any past or present member of the [Authority], with documents showing the purpose for which such check was written.
As evidenced by the record, the Authority received Mr. Mefford's request on June 7, 2005, and Marc A. Lovell, attorney, responded by letter dated June 10, 2005.
With respect to the rules and regulations, the Authority "is not in possession of any documents responsive to this Request." In denying access to the requested meeting minutes, the Authority argues:
This request seeks documents which are exempt from inspection pursuant to KRS 61.878(1), 61.878(1)(a), 61.878(1)(c)(1), 61.878(1)(c)(2), 61.878(1)(d), 61.878(1)(e), 61.878(1)(f), 61.878(1)(i), 61.878(1)(j) and 61.878(1)(l). Furthermore, the documents requested are exempt as they include confidential and proprietary documents which would unfairly advantage competitors of the Authority. To the extent that this Request may attempt to seek documents related to and/or memorializing legal consultation and/or services performed, such documents are exempt from inspection pursuant to the attorney/client privilege and/or work product performed related to personnel, real estate and/or in anticipation of litigation. Such documents may contain detailed information regarding the confidential counsel given to the Authority. Pursuant to Rule 503(a)(1) of the Kentucky Rules of Evidence, "client" means a person, including a public officer, a corporation, association, or other organization or entity, either public or private, who was rendered professional legal services by a lawyer. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. KRE 501(a)(5) Public records protected by the attorney/client privilege are exempt from disclosure or production under the Open Records Act. See Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2002); KRS 61.878(1)(l). "No court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery." KRS 61.878(1)(l).
Without waiving this argument, the Authority released the minutes from the meetings held on April 11, 2000, and July 10, 2001, copies of which are attached to the Authority's response.
Turning to the requested contracts, the Authority cited KRS 61.878(1), 61.878(1)(a), 61.878(1)(c)(1), 61.878(1)(c)(2), 61.878(1)(d), 61.878(1)(f), 61.878(i), and 61.878(1)(l) in denying access. In support of this position, the Authority contends that the requested records are "exempt as they include confidential and proprietary documents which would unfairly advantage competitors of the Authority. Furthermore, Dennis Griffin is not an employee of the Authority." In the Authority's view, Item Numbers 4 and 5 are exempt pursuant to the same statutory exceptions, as well as 61.878(1)(e) and 61.878(1)(j), as the records requested include confidential and proprietary documents which would unfairly advantage competitors of the Authority. In partial satisfaction of Item 4, the Authority provided Mr. Mefford with copies of an e-mail message from Curtis Whaley dated April 12, 2002, entitled "Grand Opening Preparations," and a program from the "GM Supplier of the Year Celebration" held at "JASCO International." Also attached are copies of e-mail messages dated November 20, 2003, and April 1, 2005, relating to Yahagi. To the extent that privileged documents "may" be implicated, the Authority reiterated its previous argument relative to KRE 501, Hahn , and KRS 61.878(1)(l) verbatim. Likewise, the Authority's response as to Items 6 and 7 mirrors its response to Items 4 and 5. With the exception of KRS 61.878(1)(e) and 61.878(1)(j), the Authority relies upon those same exceptions in denying Item 8, again advising Mr. Mefford that "Dennis Griffin is not an employee of the authority." 1
According to the Authority, the records requested at Item 9 are "exempt from inspection pursuant to KRS 61.878(1), 61.878(1)(a) and 61.878(1)(i)." Without waiving this argument, the Authority asserted that it is not in possession of any documents responsive to this request. 2 Relying upon the exceptions invoked relative to Item 9, the Authority denied Mr. Mefford's request for copies of records documenting disbursements to Holland CPA or Lanny White, with the exception of nine checks, copies of which are attached to the Authority's response along with a copy of a business card from Fire One, Inc. in response to Item 9. In denying Item 11, the Authority again relies upon KRS 61.878(1), 61.878(1)(a) and 61.878(1)(i) , and echoes its earlier argument regarding attorney-client privilege, but attaches four pages of responsive copies consisting of checks to an "N.E. Reed" and a "Jerry Patton," an itemized list of "Expenses for Melinda Hill," and what appear to be copies of three related receipts. 3 Dissatisfied with this response, Mr. Mefford initiated the instant appeal in a letter received by this office on June 17, 2005.
Upon receiving notification of Mr. Mefford's appeal from this office, Mr. Lovell supplemented his response on behalf of the Authority. According to Mr. Lovell, the request was "served upon the Authority by Dennis Griffin, by and through his attorney, Tim Mefford. Mr. Griffin is a former Independent Contractor of the Authority who performed consultant services to the Authority for recruitment of new industry to Edmonson County, Kentucky." Without waiving the arguments raised, "pursuant to KRS 61.878(4), the Authority separated out records which are not excepted from inspection and produced them attached to the Authority's response." Although the statutory burden of proof clearly lies with the agency, Mr. Lovell observes that Mr. Mefford "fails to cite any legal authority in support of the position that the Authority's Response" was "inaccurate or insufficient." Reiterating his previous argument, Mr. Lovell contends that in Item Nos. 4-7, "confidential and proprietary documents specific to industries located in the Edmonson County Industrial Park and contracting with the Authority are requested." In Mr. Lovell's view, the disclosure of such confidential documents "will prejudicially permit an unfair commercial advantage to competitors of the entities that disclosed the records to the Authority, as well as competitors of the Authority." 4 Those records, as well as those identified at Items 2 and 3, are exempt "because they will unfairly prejudice the Authority by disclosing incentives, inducements and prospective businesses or industries with an interest in locating in, relocating within, or expanding within the Commonwealth of Kentucky." Citing Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766 (1995), the Authority argues that such information and documents "are generally recognized as confidential or proprietary and fall within the statutory exemptions. "
In this case, disclosure of the records sought related to the specific industries located in the Edmonson County Industrial Park, independent contractors and industries contracting with the Authority, "and regarding inducements or other incentives designed to lure or attract businesses or industries attempting to relocate within Kentucky," will permit an unfair commercial advantage to competitors of those specific industries, as well as the Authority. Accordingly, the Authority believes that its denial of Mr. Mefford's request should be affirmed on all counts. Because the Authority has failed to comply with the procedural guidelines codified at KRS 61.880(1) and misconstrued governing precedent, this office respectfully disagrees.
As a public agency, the Authority is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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 . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 6.1880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-163; 04-ORD-106.
Although the Authority appears to have responded in a timely fashion, and cites numerous exceptions which purportedly apply to the records withheld, noticeably absent from the Authority's response is the requisite brief explanation relative to Items 2-8, and 10-11. Merely citing the applicable exception(s) or relevant definitions, as the Authority did in responding to the request at issue, and/or parroting the language of KRS 61.878(1)(c)1., as the Authority did in denying Items 2-8, does not suffice. To the contrary, a public agency such as the Authority must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 5 As long recognized by this office, "a bare allegation, without a supporting explanation, is not sufficient under the Open Records Act. " 96-ORD-135, p. 4, citing 95-ORD-107. 6
Elaborating somewhat as to the attorney-client privilege, the Authority repeatedly asserts that Mr. Mefford's request "may attempt to seek" certain unspecified documents that are "exempt from inspection pursuant to the attorney-client privilege and/or work product performed related to personnel, real estate and/or in anticipation of litigation." According to the Authority, such documents "may contain detailed information regarding the confidential counsel given to the Authority." In support of this position, the Authority quotes the definitions of "client" and "confidential" codified at KRE 503(a)(1), and the general rule found at KRS 61.878(1) without further explanation. Noticeably lacking is the degree of specificity required to successfully invoke the cited provisions. 7 As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In a related vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6) which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2; 04-ORD-208. In short, neither the initial response nor the supplemental response of the Authority contains the specificity envisioned by KRS 61.880(1). 8 From a procedural standpoint, the Authority violated the Act in failing to comply with this statutory mandate. In responding to future requests, the Authority should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187.
Turning to the first substantive issue presented, the admitted failure of the Authority to "adopt rules and regulations in conformity with the provisions of the [Open Records Act] to provide full access to public records, . . . " and display a copy of its rules and regulations "in a prominent location accessible to the public" constitutes a violation of KRS 61.876(1) and (2), respectively. 9 As long recognized by the Attorney General, these provisions are:
aimed at insuring that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted]. . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. As early as 1978, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records, and failure to do so constitutes a violation of the Open Records Act. OAG 78-340. See also 04-ORD-053; 95-ORD-49; 94-ORD-12; 93-ORD-83; 92-ORD-1567. As demonstrated by the cited decisions, this is an issue which may properly be presented to the Attorney General for resolution pursuant to KRS 61.880(2). Because the broadest possible dissemination of an agency's rules and regulations concerning public records is mandated by both the letter and the spirit of the Open Records Act, this office urges the Authority to review its policy relative to KRS 61.876 in order to ensure conformity with the Act.
In light of this determination, the question becomes whether the Authority properly denied access to the meeting minutes requested on the basis of KRS 61.878(1)(c)1. In 01-ORD-87, the Attorney General rejected the claim by the Frankfort Electric Plant Board that KRS 61.878(1)(c)1. authorized partial nondisclosure of the minutes from regular meetings that contained "financial information concerning the inner workings of the . . . Plant Board in the telecommunications area, as well as customer identity information," and total nondisclosure of financial projections relating to expansion of existing services that were provided by an outside consultant at the Plant Board's expense; this argument is equally unpersuasive on the facts presented. KRS 61.878(1)(c)1. authorizes public agencies to withhold:
. . . records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records[.]
At pages 5-7 of 01-ORD-87, this office examined case law interpreting KRS 61.878(1)(c)1., noting that on at least two occasions the Kentucky Supreme Court had affirmed denials of open records requests by public agencies based upon this exemption, namely, Hoy, supra 10, and Marina Management Services, Inc. v. Cabinet for Tourism, Ky., 906 S.W.2d 318 (1995). 11 See also Southeastern United Medigroup v. Hughes, Ky., 952 S.W.2d 195 (1997). 12 Concluding that the Plant Board had nonetheless erred in relying upon KRS 61.878(1)(c)1., this office engaged in the following analysis:
These cases, along with the cited open records decisions, demonstrate that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. That exception, as noted above, "is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage." 97-ORD-66, p. 10 (emphasis added). It is, in general, inapplicable to records generated by or for a public agency. "The exemption's protection simply does not extend to the agency's own records," such as minutes of the agency's public meetings. Id. Nor, we would hasten to note, does its protection extend to a consultant's report prepared for the agency at agency expense. The Franklin Electric Plant Board has not established that disclosure of the meeting minutes or financial projections "would permit an unfair commercial advantage to competitors of the entity that disclosed the records ."
In the case of financial projections, the "entity that disclosed the records" is the outside consultant, a sister electric plant board. No claim is made that the sister plant board would be competitively disadvantaged by disclosure, and none could be made since the financial projections relate to the Franklin Electric Plant Board. [Footnote omitted.] In the case of minutes of regular meetings, such records are not "confidentially disclosed to an agency or required by an agency to be disclosed to it" nor are they "generally recognized as confidential or propriety." The fact that comments were ill-advisedly made in the course of an open, public meeting that placed the Board at a risk of competitive harm is not enough to bring minutes reflecting those comments within the scope of KRS 61.878(1)(c)1. Bearing in mind that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," we find that the Franklin Electric Plant Board improperly relied on this exemption. KRS 61.871.
Moreover, with respect to minutes of an open meeting of a public agency, KRS 61.835 places an affirmative duty on the agency to make those minutes "open to public inspection at reasonable times no later than immediately following the next meeting of the body." No claim is made that these comments were made in a properly conducted closed session, and no statutory basis exists for denying access to all or any part of the minutes of an open, public meeting. We believe that the Board erred in refusing to disclose the minutes in their entirety . . . .
01-ORD-87, p. 7, 8. It is the decision of this office that the reasoning of 01-ORD-87 and the authorities cited therein is equally determinative as to both the minutes and other records still at issue.
Neither the minutes of the Authority's meetings, nor financial statements/documents or contracts generated by or for it, qualify as records "confidentially disclosed to [the Authority] or required by the [Authority] to be disclosed to it." KRS 61.878(1)(c)1. Such records are, instead, in the nature of operational and financial records created by or for the Authority in the normal course of business, and are therefore "the [Authority's] own records" to which the protection afforded by KRS 61.878(1)(c)1. does not extend. 97-ORD-66, p. 10. As noted in 01-ORD-87, in order to qualify for exclusion under KRS 61.878(1)(c)1., a public record must be:
1) confidentially disclosed to an agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
See also 01-ORD-143; 97-ORD-132; 97-ORD-66; 96-ORD-135.
Applying the summarized principles to the facts presented, this office concludes that the Authority has not adduced sufficient proof to support its invocation of KRS 61.878(1)(c)1. To the contrary, the limited evidence of record suggests that the records requested are more analogous to the financial and operational records at issue in 97-ORD-66, and the minutes of agency meetings at issue in 01-ORD-87. In other words, the records appear to be of the type generated "in the normal course of business." 97-ORD-66, p. 10. Such records do not fall within the parameters of KRS 61.878(1)(c)1.; the protection afforded by that exemption simply does not extend to the Authority's own records. Id. Because none of the records withheld primarily on the basis of KRS 61.878(1)(c)1. satisfy the first of these three requirements, KRS 61.878(1)(c)1. is inapposite, and the Authority's reliance upon it is misplaced.
Given our resolution of this issue, the remaining question is whether the Authority properly invoked KRS 61.878(1)(a) and (i) in denying access to the records identified at Items 9-11. In a long line of decisions, the Attorney General has recognized that such records, which can generally be characterized as financial or operational records, must be made available for public inspection. 04-ORD-113; 04-ORD-084. For example, in 02-ORD-208, this office expressly held that the protection afforded by KRS 61.878(1)(i) and (j) does not extend to financial and operational records such as "written employment contracts or agreements, billing statements or bills for services, or records documenting payment for services." Id., p. 4. Such records, inasmuch as they relate to "amounts paid from public coffers are . . . uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. In short, "wherever public funds go, the public interest follows." OAG 76-648. See 04-ORD-113, pp. 15-16 (holding that "minutes of board meetings, resignation letters submitted by board members, tax exempt status filings, correspondence to and from Amerisource Corporation relating to the [agency's] change of status to a nonprofit corporation, and bank statements for a period of thirteen months" are financial and operational records subject to inspection) ; OAG 91-7, p. 3 (holding that "records of bills paid, payroll checks stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law").
As a corollary to this position, the Attorney General has long recognized the public's right to inspect records documenting disbursements made by an agency to attorneys hired to represent the agency in litigation. 00-ORD-104, p. 7; 95-ORD-18; OAG 92-92; OAG 92-14; OAG 85-91; OAG 82-169. Although the attorney-client privilege, codified at KRE 503, is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), "the privilege does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10. Elaborating upon this principle, our office has observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of ensuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for inspection at the conclusion of pending litigation. We believe that that opinion coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney-client privilege, and exempt under KRS [61.878(1)(l)], the exempt material should be separated from the non-exempt materials, and the non-exempt materials [should be] released for public inspection.
In OAG 92-92, we elaborated on OAG 92-14, reaffirming our opinion that information about attorney fees is privileged only if its disclosure would reveal confidential communications between the attorney and client, and announcing that the existence of pending litigation does not preclude release of the records by a public agency unless the agency is a law enforcement agency or an agency involved in administrative adjudication, and premature disclosure of the information would harm the agency. KRS 61.878(1)(h).
00-ORD-104, p. 8, citing 95-ORD-81, p. 3.
In 04-ORD-084, the Attorney General removed any doubt as to the applicability of this reasoning to records generated by "professional service corporations," such as accounting firms, holding that the public's right to access records reflecting public funds expended for the rendition of professional and legal services is beyond dispute. Id., p. 5. Accordingly, the Authority is not statutorily authorized to withhold the financial records identified at Items 8-11.
To summarize, neither the limited evidence of record nor the relevant authorities support the Authority's position that any of the requested records are exempt with the possible exception of those which allegedly constitute privileged communications between attorney and client. As to those records, the Authority must identify and generally describe the specific records being withheld and articulate the basis for denial in terms of the privilege codified at KRE 503(b) in order to satisfy its burden of proof.
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.
Footnotes
Footnotes
1 Such information has no bearing on our analysis.
2 A public agency obviously "cannot provide access to records that it does not have or which do not exist." 03-ORD-205, citing 99-ORD-98; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134. Nor is it "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-136, p. 2. An agency discharges its duty under the Act by affirmatively indicating that no responsive records exist as the Authority did here.
3 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. To the extent that the Authority has honored Mr. Mefford's request, any issues relative to those records provided are therefore moot. However, the Authority has not provided all existing records which are responsive to the specified items of Mr. Mefford's request, and any issues relative to those records withheld are not moot.
4 Only the former concern is relevant to the analysis employed pursuant to KRS 61.878(1)(c)1.
5 In the absence of a particular and detailed explanation of how the cited exceptions apply to the records withheld, this office is not persuaded that any of the exceptions authorize the Authority to withhold the requested records with the possible exception of KRS 61.878(1)(c)1. Because the Authority consistently focuses almost exclusively upon this argument, our analysis does as well.
6 With respect to the burden imposed on the agency relative to this provision, the Attorney General has observed:
Without going into an exhaustive and highly technical explanation, and thus defeating the purpose for which the exceptions was invoked, we believe [the Authority] could have [clarified whether the records requested were confidentially disclosed or required to be disclosed to it], offered a brief description of the competitive harm the private entit[y] might suffer as a result of disclosure, and some proof, beyond a bare assertion, that the disputed records are generally recognized as confidential or proprietary.
96-ORD-135, p. 4; 04-ORD-175.
7 Although the Authority is certainly authorized to withhold those records containing privileged attorney-client communications, the Authority has failed to identify the specific records which are being withheld and articulate the basis for denying access in terms of the privilege codified at KRE 503(b), incorporated into the Act by virtue of KRS 61.878(1)(l), as required to satisfy its burden of proof relative to those records. Until the Authority identifies and generally describes any responsive records being withheld on this basis in terms of the privilege, it is in violation of the Act. On this issue, the analysis contained in 04-ORD-187, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See also 97-ORD-66.
8 While the Authority does expand somewhat upon its argument relative to KRS 61.878(1)(c)1. on appeal, a response pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant an agency's denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id.
9 KRS 61.876(1) and (2) provide:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 6.1870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
10 In Hoy , the Court concluded:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
Id . at 768. As evidenced by the foregoing, the Hoy court construed KRS 61.878(1)(c)2., which does not require a showing that disclosure of the records would permit an unfair advantage to competitors of the entity disclosing the records, the third criterion codified at KRS 61.878(1)(c)1. However, the language of these provisions is identical as to the first two criteria. Like the other exceptions to public inspection, the burden of proof relative to invocation of KRS 61.878(1)(c)1. and (1)(c)2. rests with the agency. In other words, the public agency must prove that the records were confidentially disclosed to it by the entity and are generally recognized as confidential or proprietary, neither of which is established by the evidence of record.
11 At page 319 of Marina Management Services , the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditor's Office. On these facts alone, the exemption clearly applies.
Thus, the Parks Department adduced sufficient proof to support invocation of the exemption.
12 Recognizing that records of a private health insurer acquired by the Department of Insurance in rate proceedings were proprietary, the Court concluded: "If it is established that a document is confidential or proprietary and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the document should be protected from disclosure. . . . " Hughes , p. 199.