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 violated the Open Records Act in the disposition of Bradley E. Cunningham's April 16, 2007, twelve part request for various records relating to applications for an intrastate "household goods certificate" for the period from September 1, 1996, to September 1, 2006, as well as records relating to his client, Malone Moving & Storage, Inc. On appeal, Mr. Cunningham challenges the Cabinet's disposition of only two of his requests, specifically, requests four and six, in which he sought access to and copies of:
4. Every final order issued by the Cabinet during the relevant period in conjunction with an application for a household goods certificate and/or an application for an additional "situs" or a change of "situs" for an existing household goods certificate [;]
6. All documents that identify or constitute evidence of any investigation or audit by the Cabinet of Malone Moving & Storage, Inc., or its officer, John Malone, conducted during the relevant period.
For the reasons that follow, we find that the Transportation Cabinet's original response was procedurally and substantively deficient, and that its supplemental response to Mr. Cunningham's appeal ameliorated, but did not cure, these deficiencies.
In its April 27, 2007, response to Mr. Cunningham's request, the Cabinet denied each of these requests. With reference to request four, the Cabinet explained:
[T]he Attorney General has ruled in several decisions [citations omitted] that it is incumbent on the requester to identify records sought with reasonable specificity, and that the public agency is not obligated to conduct a search for such documents. Generic requests for "all" documents or "every" document concerning a specified subject matter have been held to be overbroad and noncompliant with the requirements of the Open Records Act. Should you wish to narrow your request for these documents to specific matters or docket numbers, perhaps your request can be honored.
With reference to request six, the Cabinet noted that Mr. Cunningham sought "audit documents," and explained that "[p]ursuant to KRS 61.878(1)(c), documents of this nature are not available for public disclosure. "
Dissatisfied with the Cabinet's response, Mr. Cunningham initiated this appeal questioning its characterization of request four as insufficiently specific, and its demand for greater specificity, including docket numbers, in light of its simultaneous denial of his request to inspect all applications filed in the relevant period from which the docket numbers might have been gleaned. Mr. Cunningham also questioned the Cabinet's denial of request six on the basis of KRS 61.878(1)(c), without explanation, in light of the fact that he represents the company to which the records relate and therefore no competitive harm to his client would result from disclosure.
In supplemental correspondence directed to this office following commencement of Mr. Cunningham's appeal, the Transportation Cabinet modified its position relative to Mr. Cunningham's request for final orders issued in conjunction with applications for a household goods certificate or change of situs. On behalf of the Cabinet, Assistant General Counsel J. Todd Shipp advised that the agency "can do a systematic file search by hand and locate the last three (3) years in office." Mr. Shipp further indicated that these responsive records would be provided, but explained that records older than three years are maintained at the Kentucky Department for Libraries and Archives and can only be located "by a file number and specific case name." Those records too, Mr. Shipp explained, are destroyed after three years. Turning to the denial of Mr. Cunningham's request for documents identifying or constituting evidence of any investigation or audit by the Cabinet of Malone Moving & Storage, Inc., Mr. Shipp explained that the Cabinet maintains an audit of Malone Moving & Storage, consisting of "investigative material," but expressed consternation at Mr. Cunningham's inability to "understand which exception applies and how it relates to an audit of a commercial enterprise. " Continuing, he observed:
The Cabinet knows of no business of any kind that would openly allow anyone to inspect confidential data unless it was in relation to and in conjunction with the regulation of some commercial venture it was involved in. We are quite certain Malone Moving and Storage does not share this data with their competitors in the highly competitive business they are involved in.
Nevertheless, Mr. Shipp agreed to provide Mr. Cunningham with a copy of the audit upon receipt of a letter from Malone confirming Mr. Cunningham's representation of the company and authorizing release of the audit to him. While the Transportation Cabinet's actions in this regard represent an apparent attempt to ameliorate the deficiencies in its original denial, we find that the Cabinet nevertheless failed to fully discharge its statutory duties, and satisfy its statutorily assigned burden of proof, in the disposition of Mr. Cunningham's request.
To begin, the Cabinet violated KRS 61.880(1) in its original denial of Mr. Cunningham's request. As the Cabinet is fully aware, that statute 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.
We will not lengthen this decision with a recapitulation of the importance of this provision and the absolute necessity of strict compliance with it. The Cabinet has been repeatedly admonished that the requirements set forth at KRS 61.880(1) are not "mere formalities." See, e.g., 94-ORD-124, 96-ORD-30; 99-ORD-32; 00-ORD-121; 05-ORD-131; 06-ORD-135. Its response to Mr. Cunningham's request was untimely and devoid of explanation, brief or otherwise, of the application of the statutes and/or authority relied upon to the records withheld. Neither Mr. Cunningham, this office, nor the courts, if our decision is appealed, should be left to speculate as to how any cited exception applies to records withheld or how any cited authority justifies the agency's position. Continued failure to discharge this fundamental duty will inevitably lead to adverse determinations by this office and perhaps the courts.
The Cabinet's supplemental response only partially ameliorated these deficiencies. Modifying its original denial of request four, the Cabinet agreed to conduct "a systematic file search by hand" for responsive records from the last three years, which are still maintained in its office, and to produce those records for Mr. Cunningham's inspection. The Cabinet further explained that only the three previous years' records exist and these reside at KDLA. 1 While we commend the Cabinet for more closely scrutinizing a request that it had previously dismissed as insufficiently specific, we question the seriousness with which it originally entertained Mr. Cunningham's request and where he might have been had he not persisted.
Moreover, we are left to wonder why the Cabinet cannot conduct a similar search of archived records, or, alternatively, permit Mr. Cunningham to conduct his own search of those records. The Cabinet does not assert that to conduct its own search of these records would be unreasonably burdensome, within the meaning of KRS 61.872(6), or that the archived records somehow enjoy protection under one or more of the exceptions to the Open Records Act. Indeed, no exemptions are invoked relative to the files that are maintained on agency premises or archived. In the absence of a substantiated claim of unreasonable burden or the invocation of an exemption or exemptions, we believe that the Cabinet must retrieve and review the archived records itself and disclose responsive records to Mr. Cunningham. If it can substantiate an unreasonable burden, within the meaning of KRS 61.872(6), the Cabinet must afford Mr. Cunningham the opportunity to conduct his own inspection.
The Cabinet also modified its position with respect to Mr. Cunningham's request for investigative and audit materials relating to Malone Moving & Storage in its supplemental response, agreeing to disclose the responsive audit upon receipt of a letter from Malone confirming Mr. Cunningham's representation and authorizing release. Although Mr. Shipp did not expressly cite either KRS 61.878(1)(c)1. or 2., he indirectly referenced KRS 61.878(1)(c)2.c. in asserting that the Cabinet knew "of no business of any kind that would openly allow anyone to inspect confidential data unless it was in relation to and in conjunction with the regulation of some commercial venture it was involved in." 2 While we again commend the Cabinet for more carefully considering Mr. Cunningham's request, we find that its failure to explain how KRS 61.878(1)(c)2.c., assuming this is the exemption upon which it relies, applies to the records withheld, and its attempt to shift the burden to Mr. Cunningham to "understand which exception applies and how it relates to an audit of a commercial enterprise, " were clearly violative of the Open Records Act.
In a decision issued shortly after the enactment of KRS 61.878(1)(c)1. and 2., this office recognized that "[i]t is incumbent on an agency which relies on this provision to establish that the [disputed] records were confidentially disclosed to the agency, are generally recognized as confidential or proprietary, such that disclosure would permit an unfair commercial advantage to competitors, and that the records were submitted either in conjunction with an application for a loan, in conjunction with an application for the administration of assessments, incentives, inducements, and tax credits, in conjunction with the regulation of a commercial enterprise, or for the grant or review of a license to do business." 93-ORD-22, p. 4. The Cabinet's original response to Mr. Cunningham's request was entirely devoid of any such showing, and its supplemental response only marginally improved on that response by making a bare claim in this regard. First and foremost, the record on appeal contains no proof whatsoever that the responsive "audit" consists of records "confidentially disclosed to [the Cabinet] or required by [the Cabinet] to be disclosed to it," a clear precondition to invocation of KRS 61.878(1)(c)2.a., b., c., or d. In the absence of such proof, we must assume that the "audit" is not a record "confidentially disclosed to" the Cabinet, but is instead the Cabinet's own record. This office has repeatedly recognized that a public agency cannot rely on KRS 61.878(1)(c)1. or 2., or any of its subparts, in denying access to records generated by or for the agency. See, e.g., 97-ORD-66; 01-ORD-87; 04-ORD-058 (enclosed). As a record apparently generated by the Cabinet, and not a record confidentially disclosed to the Cabinet, the audit does not enjoy protection under KRS 61.878(1)(c)2.c. Unless the Cabinet can adduce proof supporting its claim, we believe the audit must be disclosed to Mr. Cunningham.
Although the Open Records Act does not require Mr. Cunningham to present a written release from his client, and although the Cabinet could be compelled to disclose the audit to him without a release, in view of its failure to satisfy its burden of proof, we are hopeful that this issue has been, or can be, resolved by presentation of a release. If Mr. Cunningham is not inclined to do so, we find that the Cabinet must nevertheless release the audit to him based on its failure to sustain its denial by proof per KRS 61.880(2)(c).
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 The Cabinet does not identify the records series on its retention schedule which establishes these disposition instructions. We have consulted with KDLA representatives who are unable to locate the appropriate records series based on these instructions. It is incumbent on the Cabinet to identify that records series to Mr. Cunningham in the instant appeal, and to include such information in formulating future responses to open records requests and/or appeals where the issue of records retention is directly raised.
2 KRS 61.878(1)(c)2.c. provides:
Upon and after July 15, 1992, records 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:
In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person.