Request By:
Charles E. Moore
David Shattuck
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Labor, Office of Occupational Safety and Health, violated the Open Records Act in partially denying Charles E. Moore's December 13, 2007, request for "a complete copy of the occupational safety and health investigative file, including any photographs that were taken" into a workplace injury sustained by his client while she was employed by American Nonwovens Corporation. Mr. Moore and his firm represent the employee in a federal lawsuit against the owners and designers of the machine she was operating when she was injured.
For the reasons that follow, we affirm the Department's denial of those portions of Mr. Moore's request that relate to preliminary work notes, including those notes that identify employees, pursuant to KRS 61.878(1)(i) and KRS 338.101(1)(a), as well as preliminary memoranda in which opinions are expressed and policies formulated or recommended pursuant to KRS 61.878(1)(j) and KRS 338.101(1)(a) , but only to the extent that the preliminary memoranda were not adopted as the basis of final action. However, having reviewed the records withheld, which the Department submitted to this office on its own volition, we find some records that do not qualify for exclusion under the cited exceptions. Moreover, having reviewed the record on appeal in its entirety, we find insufficient proof to support the Department's claim that the photographs withheld qualify for exclusion as trade secrets or as records that are otherwise generally recognized as confidential and proprietary.
In supplemental correspondence directed to this office following commencement of Mr. Moore's appeal, Labor Counsel David Shattuck tendered copies of the documents withheld, describing them as "the case officer's work notes, as well as preliminary memoranda and internal tracking documents, which are exempt pursuant to KRS 61.878(1)(i) and (j). Photographs were withheld as trade secrets at the request of the employer [and i]nformation identifying employees who complained or who the inspector contacted was withheld pursuant to KRS 338.101(1)(a) and KRS 61.818(1)(l) [sic.]." In support, Mr. Shattuck cited 00-ORD-120. Shortly thereafter, Mr. Moore filed a written rebuttal to the Department's supplemental response. He asserted that the Department "cites to no statutory authority for withholding . . . photographs, " and attached several pages of photographs "that the same employer (American Nonwovens Corporation) allowed [his] office to take with no trade secret restrictions." On this basis, Mr. Moore maintained that "there is no authority for withholding the photographs . . . ."
Unable to resolve the issues presented on these conflicting facts, this office requested additional documentation from the Department pursuant to KRS 61.880(2)(c) by letter dated February 1, 2008. Specifically, we asked that the Department "advise us what statutory exemption . . . [it] relied upon in denying Mr. Moore access to photographs, and that [it] specifically explain how the exemption applies to the records withheld. " In addition, we asked that the Department provide us "with any records . . . that substantiate [its] claim that American Nonwovens Corporation requested that the photographs be withheld as trade secret, " and that it "respond to Mr. Moore's argument that [its] position relative to the photographs is without merit given the fact that American Nonwovens Corporation permitted his law firm to take a series of photographs at the plant with no trade secret restrictions."
On February 5, 2008, the Department responded to our request. Mr. Shattuck advised:
KRS 61.878(1)(l), in connection with KRS 365.880 and 94-ORD-97, are the authorities we relied on. These authorities directly apply to the withheld records because the employer requested that the photos be maintained as trade secrets, and 94-ORD-97 authorizes an agency to withhold records that reveal trade secrets.
The Department speculated that Mr. Moore "obtained these photographs directly through the employer or a third-party . . .," but agreed to release them "if the Attorney General rules they are not protected trade secrets . . . ."
It is the decision of this office that the Department properly relied on KRS 61.878(1)(i) and (j) and KRS 338.101(1)(a) in denying Mr. Moore access to preliminary work notes, including those notes that identify employees, and preliminary memoranda in which opinions were expressed or policies formulated or recommended, but only if those memoranda were not adopted as the basis of final action.
Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j) as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency [;]
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
It is well settled that an occupational safety and health compliance officer's work notes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer's observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). See OAG 92-90 and 92-ORD-1441 (copies enclosed) and the authorities cited therein. In a line of open records decisions dating from 1982 to the present, the Attorney General has reaffirmed this principle.
It is equally well settled that employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 03-ORD 249. KRS 61.878(1)(l) authorizes agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 338.101(1)(a) provides:
(1) In order to carry out the purposes of this chapter, the commissioner or his authorized representative shall have the authority:
(Emphasis added.) This office has construed the term "question privately" to extend protection to any statements thus obtained. OAG 82-192; 92-ORD-1441; 98-ORD-190. We believe that these decisions are dispositive of the appeal before us. Any information identifying employees contacted and/or interviewed may be withheld from disclosure pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(l). We find no error in the Department's denial of this portion of Mr. Moore's request.
Nevertheless, we have examined the records which the Department withheld, and submitted to this office for the apparent purpose of in camera inspection after Mr. Moore initiated his appeal, 1 and have located several which do not appear to constitute preliminary work notes or preliminary memoranda in which opinions are expressed. Although we are statutorily foreclosed from revealing their content, we can describe those records in general terms as follows:
1. Certificate of Service dated November 7, 2006;
2. Unexecuted "Notification of Abatement of Apparent Violation";
3. Fax Cover Sheet dated July 24, 2006;
4. "Inspection Assignment" dated July 3, 2006;
5. Fax Cover Sheet dated July 3, 2006.
Having reviewed these records, we find that they do not contain preliminary work notes, preliminary recommendations, or preliminary memoranda in which opinions are expressed or policies formulated or recommended. Nor do they identify any employees "questioned privately. " Insofar as they do not qualify as either preliminary drafts, notes, or preliminary memoranda in which opinions are expressed or policies formulated or recommended, and do not identify employees "questioned privately, " we find that the Department improperly withheld these records.
Similarly, we find that unless the Department can substantiate that the "Informal Conference Summary," located in the packet of materials provided to this office, was not adopted as the basis of final action in this case, it, too, must be disclosed. Although the subheading "Internal Memorandum" appears on that document, it, like any other preliminary memorandum in which opinions are expressed or policies formulated or recommended, forfeited its preliminary characterization if it was adopted as the basis of final action. See, 01-ORD-83 and authorities cited therein (copy enclosed). Again without disclosing its actual contents, we can describe the summary generally as consisting of factual findings and recommendations relative to penalties. Handwritten notations seem to confirm that those recommendations were adopted as the basis of final action. If so, the "Informal Conference Summary" must also be disclosed. 2
Finally, we find that the Department's reliance on KRS 61.878(1)(l) and KRS 365.880 as the basis for denying that portion of Mr. Moore's request relating to photographs taken in the course of the investigation was misplaced. KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 365.880 defines the term "trade secret" as:
information, including a formula, pattern, compilation, program, data, device, method, technique, or process, that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The statute also defines "improper means," "misappropriation, " and "person" for purposes of KRS 365.880 to 365.900, but does not "prohibit[] or restrict[] or otherwise ma[k]e confidential" public records or information. These provisions are aimed at affording injunctive relief in the case of "actual or threatened misappropriation" of a trade secret, 3 and not to create a separate and independent confidentiality provision that could, inter alia , be engrafted upon the exceptions to the Open Records Act by operation of KRS 61.878(1)(l). To the extent that this office's analysis of KRS 365.880 in 94-ORD-97 conflicts with this position, that open records decision is hereby modified.
Nevertheless, the exceptions to the Open Records Act extend protection to "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 KRS 61.878(1)(c)1. 4 Upon a showing by the public agency that these three criteria have been met, the courts and this office have affirmed the agency's denial of a request for proprietary records. See, e.g., Marina Management Services, Inc. v. Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995), Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766 (Ky. 1995); 99-ORD-201; 92-ORD-1134; OAG 88-1, OAG 83-256. It is upon this exception, and not KRS 61.878(1)(l), that the Department might have properly relied in denying that portion of Mr. Moore's request that related to photographs had it made a sufficient showing that each of the three criteria were met . In spite of the fact that it was afforded several opportunities to do so, the Department did not make the requisite showing.
In its original response to Mr. Moore's request, the Department made no direct reference to the photographs, asserting only that "[i]nformation which if disclosed might reveal trade secrets is also exempted from release pursuant to KRS 61.878(1)(l)." In its supplemental response to Mr. Moore's letter of appeal, the Department maintained that "[p]hotographs were withheld as trade secrets at the request of the employer." In its response to our KRS 61.880(2)(c) inquiry and, in particular, the questions prompted by Mr. Moore's claim that his firm had been permitted by the employer to take on-site photographs without trade secret restrictions, the Department merely repeated that "the employer requested that the photos be maintained as trade secrets . . . ." The Department ignored our request for "any records . . . that substantiated the [Department's] claim that American Nonwovens Corporation requested that the photographs be withheld . . .," and for a response "to Mr. Moore's argument that the [Department's] position relative to the photographs is without merit given the fact that American Nonwovens Corporation permitted his law firm to take series of photographs at the plant 'with no trade secrets restrictions.'" Having failed to adduce any proof in support of its claim that the disputed photographs qualify for protection under KRS 61.878(1)(c)1., 5 the same proof that it might have adduced to support a claim of trade secret, we are left with no alternative but to conclude that the Department did not meet its statutorily assigned burden of proof 6 relative to the photographs and that they must therefore be disclosed.
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 KRS 61.880(2)(c) provide as follows:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed . (Emphasis added.)
2 The Department cites 00-ORD-120 in support of its partial denial of Mr. Moore's request. In that open records decision, the Attorney General adjudicated a dispute between an inmate and a correctional facility concerning access to an x-ray of the inmate's injured wrist. Resolution of that dispute turned on the nonexistence of the requested record and not on the application of KRS 61.878(1)(i) and (j), or KRS 338.101(1)(a), to that record. 00-ORD-120 is therefore inapposite.
3 KRS 365.882.
4 Additional protection for records that are generally recognized as confidential and proprietary exists at KRS 61.878(1)(c)2.a., b., c., and d.
5 While we acknowledge that this office has refused to recognize the application of KRS 61.878(1)(c)1. to records generated by or for the agency, such as minutes of the agency's meetings (97-ORD-66) or a consultant's report prepared for the agency at agency expense (01-ORD-087), we do not believe that the language of the statute, and in particular, "records confidentially disclosed to an agency or required by an agency to be disclosed to it," should be read so narrowly as to exclude photographs taken by an agency on private premises as an integral part of an investigation or inspection if the agency establishes that the content of the photographs is generally recognized as confidential or proprietary and of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that was required to disclose it. It is the absence of any proof in this regard that is fatal to the Department's argument.
6 KRS 61.880(2)(c) assigns the burden of proof in denying a request to the public agency.