Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Transportation Cabinet violated the Kentucky Open Records Act in denying Messenger-Inquirer reporter James Mayse's request for "[c]opies of any complaints the Department of Transportation might have received relating to the business practices of asphalt companies doing business in the state," with "relevant" documents to include "any complaint about asphalt companies creating monopolies or conspiring to discourage competition," as he subsequently clarified. Because the Cabinet has not received any responsive complaints from external sources, the Cabinet is necessarily unable to produce any such complaints. In accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005), and prior decisions, including 07-ORD-188 and 07-ORD-190, this office affirms the Cabinet's denial as to nonexistent complaints. With regard to the only two potentially responsive internal complaints, which are currently under investigation by the Cabinet's Office of Inspector General, the Cabinet properly denied access on the basis of KRS 61.878(1)(h). Although the Cabinet initially violated KRS 61.880(1) in failing to identify the specific records being withheld and explain how the cited exception applies, the agency satisfied its burden of proof relative to KRS 61.878(1)(h) on appeal.
On December 8, 2008, Mr. Mayse directed his request to Records Custodian Ann Stansel, in care of Mark A. Brown, via e-mail and facsimile. 1 Ms. Stansel initially asked for clarification as to "which specific companies or areas he is looking for," noting that his request was "pretty vague and would require a search of the entire Highway Department (including districts)." In response to Ms. Stansel's request for clarification, Mr. Mayse advised that he was "interested in complaints the Cabinet might have received, alleging asphalt companies act in concert to create exclusive territories for their businesses. So any complaint about asphalt companies creating monopolies or conspiring to discourage competition would be relevant." Mr. Mayse was unable to "limit the search to areas or cities, because the sources here say the problem is statewide (and even crosses state lines to include asphalt companies in Indiana)." Because Mr. Mayse had also "heard the districts have the same problem with asphalt contracts," he was "interested in those documents as well."
In a timely written response, Ms. Stansel denied Mr. Mayse's request, advising "that this matter is currently under investigation. Until such time as this investigation has been concluded, the requested records are not available for public inspection pursuant to KRS 61.878(1)(h)." Noting the Cabinet's failure to explain how KRS 61.878(1)(h) applies on the facts presented, Mr. Mayse subsequently initiated this appeal. Because the Cabinet did not specify which agency is conducting the investigation, Mr. Mayse argues "there is no way for me to determine if the exemption" it cited is appropriate. In addition, the Cabinet provided "no evidence that confidential sources would be revealed or the investigation would be compromised by the release of the documents, as is required by law [KRS 61.880(1)]." As correctly observed by Mr. Mayse, if the Cabinet "cannot explain how confidential sources would be revealed or how the investigation would be harmed by 'premature release of information', the exemption does not apply." Finally, Mr. Mayse notes that the Cabinet "does not even say what records, or how many records, they are withholding. If the Cabinet has received more than one complaint," it should state the number and how many of those are under investigation.
Upon receiving notification of the Messenger-Inquirer's appeal from this office, J. Todd Shipp, Senior Counsel/Special Assistant, responded on behalf of the Cabinet. In defense of the Cabinet's denial, Mr. Shipp explains:
First of all, KYTC must point out that Mr. Mayse made a generic request for "any complaint." There are generally two types of complaints, those from outside sources and those generated from within. KYTC, after careful review of his request, assumed he preferred receiving external complaints, primarily due to his statement(s) "might have received."
To date, KYTC has received no complaints from external sources alleging any of the allegations set forth in Mr. Mayse's request. After attempts to get the request more specific (which was unsuccessful) as to time frame, location and/or company, KYTC provided a response that would reflect calendar year 2008.
Further, this is to advise that KYTC does have a Market Analysis program known as BAMS [Bid Analysis Monitoring System]. Its design and utilization is for the purpose of monitoring bidding and to detect bids or bid patterns that may be called into question. This BAMS program is overseen and monitored through the Division of Audits. Should the program highlight a bid or series of bids that fit within an atypical pattern, the Division of Audits forwards that to the Office of Inspector General for further review and preliminary investigation. To date, two matters have been referred and are presently under investigation to determine what, if anything, may be occurring. KRS 61.878(1)(h) applies clearly to investigative activity initiated by and conducted through [the] Office[] of Inspector General. At present, KYTC Office of Inspector General is reviewing and investigating the internal complaint referrals.
The applicability is two-fold. The most immediate is the ability of the administrative or criminal investigation to proceed without alerting the parties involved that it is occurring and thus endangering the loss of evidence and any chance of success. Second, it also provides a shield or protection to a person or entity from unwarranted public scrutiny if the issue is unfounded.
Based upon the foregoing, Mr. Shipp argues that KRS 61.878(1)(h) "clearly applies and thus this denial was legally appropriate." Although Mr. Mayse is entirely correct in his application of KRS 61.880(1) and KRS 61.878(1)(h), the Cabinet has now confirmed that no complaints have been received which are responsive to his request as framed, 2 and has belatedly identified the other potentially responsive complaints withheld. Because the Cabinet has also sufficiently demonstrated the harm that would result from disclosure of the latter complaints in responding to his appeal, this office must affirm the ultimate disposition of Mr. Mayse's request on the basis of KRS 61.878(1)(h).
As a public agency, the Department 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 generally speaking. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
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 observed:
The language of [KRS 61.880(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).
Although the Cabinet responded to Mr. Mayse's request in a timely manner, citing KRS 61.878(1)(h) as the basis for denial, noticeably absent is any explanation of how this exception applies to the unidentified records being withheld; a "generic determination" that certain categories of records are removed from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirements of the law. 07-ORD-199, pp. 10-11, citing 94-ORD-133. In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), the Cabinet was required to not only cite the applicable statutory exception, but also provide a brief explanation of how that exception applies to the records, or portions thereof being withheld per KRS 61.880(1). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently 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 [a public 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 (emphasis added); 04-ORD-106; 03-ORD-213. More generally, this office has repeatedly 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 (emphasis added).
Bearing in mind that public agencies like the Cabinet have the burden of proof under KRS 61.880(2)(c) in denying requests, and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the Cabinet's initial response was procedurally deficient.
Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the Cabinet should be guided by the longstanding principle that procedural requirements of the 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. 3 That being said, the Cabinet has belatedly satisfied its burden of proof as to both nonexistent records, and those which may be potentially responsive.
As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the Cabinet has asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records (or lack of possession, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9. In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Having explained to Mr. Mayse that no complaints from external sources which are responsive to his request were received in 2008, the Cabinet discharged its duty under the Open Records Act relative to same. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101; OAG 86-38. To hold otherwise would result in the Cabinet "essentially hav[ing] to prove a negative" in order to refute a claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the Cabinet's denial of Mr. Mayse's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. In light of this determination, the remaining question is whether the Cabinet properly relied on KRS 61.878(1)(h) as the basis for denying access to the two potentially responsive "internal complaint referrals. "
Among those records excluded from application of the Open Records Act in the absence of a court order authorizing inspection are those identified as:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory and regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
KRS 61.878(1)(h)(emphasis added).
In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. 4
95-ORD-95, pp. 2, 3; 02-ORD-179; 00-ORD-196; 99-ORD-162; 97-ORD-93. In
University of Kentucky v. Courier-Journal & Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test.
Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 5 In short, the issue of whether a public agency has satisfied the requisite criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three components of the test contained therein as the Cabinet ultimately did here.
This appeal is distinguishable from the referenced line of decisions in one crucial respect; here, the agency has articulated the basis for denying access in terms of the requirements codified at KRS 61.878(1)(h) thereby satisfying its burden of proof, albeit belatedly. Having described the investigatory function of the OIG in relation to BAMS, the Cabinet has established that its role in this context is that of a public agency involved in administrative adjudication as required to satisfy the first criterion of KRS 61.878(1)(h); likewise, the records in dispute were necessarily compiled in the investigatory process. 6 Resolution of this appeal turns on whether the Cabinet has demonstrated the harm that would result from premature disclosure of the records being sought. The Cabinet has done so in this case. As noted above, the Cabinet has expressed the legitimate concern that disclosure of the complaints under investigation would "alert[] the parties involved" and thus risk "the loss of evidence and any chance of success." Because the Cabinet has established that the records in dispute are records of an administrative agency compiled in the process of detecting and investigating a statutory or regulatory violation, the disclosure of which would harm the Cabinet by premature release of information to be used in a prospective administrative adjudication, this office must affirm the denial on the basis of KRS 61.878(1)(h). See 06-ORD-164; 05-ORD-168.
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 Pursuant to KRS 61.872(2), "[t]he application shall be hand delivered, mailed, or sent via facsimile to the public agency. "
2 Given the broad nature of the request, the Cabinet's interpretation of the request and its request for clarification were reasonable in our view; such a request is not properly characterized as a denial nor is a request for more precise information. 05-ORD-241, p. 2. In light of Mr. Mayse's inability to narrow the scope of the request by geographical area or time frame, etc., restricting the search to complaints received in 2008 also seems reasonable.
3 As a corollary proposition, the Cabinet should bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its 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.
4 Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met." 95-ORD-95, pp. 2-3.
5 See 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in a 911 tape would harm the City was insufficient to satisfy its statutory burden of proof) ; 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department that would result from disclosing the videotape of an incident that occurred in the Hall of Justice). See also 96-ORD-56; 96-ORD-155; 97-ORD-129; 02-ORD-179.
6 In OAG 89-11, this office found that "records compiled in the process of detecting and investigating statutory or regulatory violations" refers to records "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process." Id., p. 3. As the written instruments "which initially spawned the investigations," complaints also enjoy protection under KRS 61.878(1)(i) and (j) until such time as final action is taken, at which point complaints are "deemed incorporated" into the final action of the agency and forfeit their preliminary characterization. City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 660 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983).