Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in partially denying Richard E. Peyton's written request for the Kentucky Occupational and Safety Health investigative file relating to the death of Michael Kelley. We conclude that the Cabinet has not satisfied its burden of proof relative to KRS 61.878(1)(c)1 insofar as the record on appeal is devoid of any evidence to substantiate that disclosure of the withheld records would permit an unfair commercial advantage to competitors of Asplundh Tree Expert Company ("Asplundh").
Mr. Peyton made his written request to April Abshire, Paralegal Consultant for the Labor Cabinet, by facsimile on January 22, 2009, in pertinent part as follows:
Please send me at the earliest possible time, by fax or email, as much information as you can concerning the death of Michael Kelley on or about January 23, 2008 while employed by Asplundh Tree Service in Hopkins County Kentucky.
On January 23, 2009, Ms. Abshire partially denied Mr. Peyton's request, 1 stating the following:
The non-exempt information is enclosed. The preliminary work notes and correspondence with private individuals are exempted from release pursuant to KRS 61.878(1)(i) and (j) to-wit: correspondence with private individuals; and preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Also, any information identifying employees contacted has been removed pursuant to KRS 338.101(1)(a). Furthermore, there is a cd of photographs that the employer has marked as "Trade Secret" pursuant to KRS 61.878 (1) (c) 1, which includes records confidentially disclosed to an agency generally recognized as confidential or proprietary
Mr. Peyton initiated this appeal by letter dated February 9, 2009, advising in part:
From the letter dated January 23, 2009, we are unable to determine exactly what information has been withheld from us.
Therefore, we ask that the entire file be provided to you by the Kentucky Labor Cabinet. We would ask that we be given a specific description of each document which has been withheld from us.
On February 18, 2009, David N. Shattuck, Office of General Counsel, responded on behalf of the Cabinet, attaching copies of the withheld records for this office's review and giving the following description and explanation:
A disk containing photographs taken by the employer was withheld pursuant to KRS 61.878(c)(1) [ sic ] because the employer asked that we maintain them as confidential. A copy of this disk is enclosed herewith.
The following documents were withheld pursuant to KRS 61.878(c)(1) [ sic ] because the employer asked that we maintain them as confidential:
(1) A 2-page "Incident Summary Report" dated January 25, 2008 and marked "preliminary",
(2) 3 pages (plus a cover sheet titled "statements") containing the handwritten statements of employees who witnessed the incident.
A copy of these documents is enclosed herewith. Also enclosed is a copy of a letter to Asplundh advising the company of its right to intervene in this appeal, as set out in 09-ORD-010.
The letter to Asplundh, dated February 17, 2009, was addressed to an office in Nicholasville, Kentucky, and read as follows:
During an investigation of a fatality in January 2008 you submitted photos and documents which you asked that we maintain as confidential. Enclosed is a notification that an open records appeal has been filed with the Attorney General.
The Attorney General in a recent decision indicated that the employer should intervene in such appeals if it wants to assert that certain records are confidential or trade secrets which, if disclosed, would permit an unfair commercial advantage to competitors.
Accordingly, you should ask to intervene in the appeal if you wish to continue to assert that the records are confidential. A copy of our response to the appeal is enclosed herewith.
Since this office has received no request from Asplundh to intervene in this appeal, our analysis of the claimed exemption must proceed on the basis of the Cabinet's response alone.
KRS 61.878(1)(c)1 excludes from application of the Open Records Act:
. . . 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[.]
To utilize this exception, a public agency must establish that the public records in dispute are:
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.
09-ORD-010; see also 03-ORD-064; 02-ORD-125; 99-ORD-88. 2
In 04-ORD-175, the Attorney General engaged in a lengthy analysis of this issue, concluding that the Cabinet (then "Department of Labor") had not satisfied its burden of proof relative to KRS 61.878(1)(c)1. More specifically, this office held that an "unsupported allegation such as '[p]ictures and information involving the company's procedures for processing materials have been removed as they are considered "trade secrets" ' does not constitute sufficient evidence to establish that the records qualify for exclusion." In the present appeal, even that vague allegation is absent.
The Cabinet has not argued that any of the photographs or documents for which Asplundh requested confidentiality are "generally recognized as confidential or proprietary" ; nor, upon viewing them, do we perceive anything that would be recognized as such. The photographs depict the scene of a fatal accident that apparently occurred while trees were being trimmed near some power lines. Although some shots of an Asplundh vehicle are included, it is merely the type of vehicle one frequently sees operating beside public roads. There is nothing to suggest confidential or proprietary information. Nor do the written documents contain anything beyond descriptions of the events surrounding the accident and the subsequent internal investigation.
Likewise, the Cabinet makes no attempt to argue that any of the withheld records, if disclosed, would permit an unfair commercial advantage to Asplundh's competitors. In short, therefore, the Cabinet's invocation of KRS 61.878(1)(c)1 is nothing but a bare statement that Asplundh asked the Cabinet to treat the records as confidential. Our past decisions make clear that this is insufficient to invoke the exception. We therefore conclude that the Labor Cabinet's reliance on KRS 61.878(1)(c)1 is misplaced and the withheld documents should 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.
Richard E. Peyton, Esq.April L. AbshireKembra Taylor, Esq.David N. Shattuck, Esq.
Footnotes
Footnotes
1 In light of the Cabinet's subsequent response to this appeal, its initial reply, apart from the last sentence quoted, appears to be "boilerplate" language that does not invariably correspond to actual materials withheld by the Cabinet. Cf. 09-ORD-010.
2 This standard was successfully met in 06-ORD-172 when the former Department of Labor included a letter from the private employer explaining the unfair commercial advantage to competitors that would result from disclosure.