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 McCreary County Fiscal Court and McCreary County Office of Economic Development properly relied on KRS 61.878(1)(c)2.a. in denying McCreary County Record News Editor Janie Slaven's November 13, 2009, requests for records "relating to the business loan approved by McCreary County Fiscal Court at the November 10, 2009, regular Fiscal Court meeting." For the reasons that follow, we find that the agencies' responses were procedurally and substantively deficient.
Ms. Slaven's request to the Fiscal Court encompassed "[a]ll documentation relating to the business loan" approved at its November 10 meeting. Her request to the Office of Economic Development extended to the same records, but specifically identified the following:
. the minutes of the McCreary County Industrial Development Authority meeting at which the loan was approved for recommendation to the Fiscal Court;
. the subsequent document presented to Fiscal Court members for approval; [and]
. any documentation concerning a loan to The McCreary County Voice and/or its agent, Patricia Stephens[.]
In a letter addressed to McCreary County Judge/Executive Blaine Phillips, and apparently hand-delivered to Ms. Slaven on November 18 following disclosure of a one-page document captioned "Loan Request Write-Up," McCreary County Attorney Michelle Wilson advised:
The Kentucky Revised Statutes prohibit the disclosure of the documents in which The Record is requested. KRS 61.878 reads as follows:
Shortly thereafter, The McCreary County Record initiated this appeal through its attorney, Jon L. Fleischaker, questioning the agencies' reliance on KRS 61.878(1)(c)2.a. as well as their compliance with KRS 61.880(1).
In supplemental correspondence directed to Mr. Fleischaker's law firm, and forwarded to the Attorney General by that office, McCreary County Judge/Executive Blaine Phillips acknowledged receipt of Ms. Slaven's request on November 13 and indicated that he responded on November 16 "with 'all requested documentation relating to the business loan approved by McCreary County Fiscal Court at the November 10, 2009, regular Fiscal Court meeting.'" On December 1, 2009, Ms. Wilson submitted a supplemental response on behalf of Judge Phillips, the Office of Economic Development, and the McCreary County Fiscal Court in which she described the events leading up to her written denial of Ms. Slaven's request. Ms. Wilson explained:
The reply that I provided to Ms. Slaven stated that the documents in which she is seeking are not available to her by law. KRS 61.878(1)(2)(a) [sic] specifically prohibit the disclosure of the documents in which Ms. Slaven is seeking . A written explanation was provided to Ms. Slaven. Said explanation cannot be made any more specific or clear. The production or disclosure of the documents is not allowed by law.
While it is possible that some records, or portions of records, submitted by the loan applicant, such as financial statements or a description of the applicants' financial stability, may qualify for protection under KRS 61.878(1)(c)2.a., KRS 61.880(2)(c) assigns the burden of proof in sustaining the denials of Ms. Slaven's requests to the agencies, and no proof of any kind is submitted in support of those denials. It is for this reason that the agencies' responses are both procedurally and substantively deficient.
KRS 61.880(1) establishes specific guidelines for public agency response to an open records request. That statute provides, in part, that "[a]n 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. " Because KRS 61.880(2)(c) assigns the "burden of proof in sustaining the action" to the agency resisting disclosure of public records, the Attorney General has recognized:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on 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.
95-ORD-61, p. 5 (emphasis in original) cited in 96-ORD-206; 99-ORD-36; 04-ORD-031; 05-ORD-167; 07-ORD-129. Moreover, the Kentucky Court of Appeals has declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmonson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The agencies resisting disclosure in the instant appeal do little more than offer a "bare assertion relative to the basis for denial" and entirely fail "to provide [the] particular and detailed information" contemplated by KRS 61.880(1). Because the agencies' response is devoid of an "explanation of how the exception applies to the record[s] withheld, " we conclude that they violated KRS 61.880(1) in denying Ms. Slaven's requests.
The absence of an explanation of how KRS 61.878(1)(c) 2.a. applies to the records withheld also compels us to conclude that the agencies violated the substantive requirements of the Open Records Act in denying Ms. Slaven's requests. As noted, that exception authorizes public agencies to withhold:
2. [R]ecords 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:
At KRS 61.871, the General Assembly has declared that "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed..." The Attorney General is thus bound by a rule of strict construction in interpreting the exceptions to the Open Records Act, and all doubts must be resolved in favor of disclosure.
In construing KRS 61.878(1)(c)2.a., the Attorney General has consistently recognized that to successfully raise this exception, a public agency must establish that the records withheld: 1) were confidentially disclosed to the agency or required by the agency to be disclosed to it; 2) are generally recognized as confidential or proprietary; and 3) are compiled and maintained in conjunction with an application for or the administration of a loan or grant. This office has regularly determined that an agency which fails to adduce evidence supporting each of these requirements fails to meet its statutorily assigned burden of proof in denying access. See, e.g., 97-ORD-132 (Hardin County Drug Task Force fails to make adequate showing that all grant application material is generally recognized as confidential or proprietary) ; 02-ORD-86 (Fayette County Rural Land Management Board fails to make adequate showing that materials submitted with purchase of development rights applications were confidentially submitted to it); 04-ORD-171 (Governor's Office of Agricultural Policy fails to meet its burden of proof in denying request for application submitted for tobacco diversification money); 05-ORD-181 (Oldham County Judge/Executive fails to demonstrate that her letter to federal officials concerning domestic violence program satisfied the first requirement codified at KRS 61.878(1)(c) 2.a.).
In Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766, 767 (Ky. 1995) the Kentucky Supreme Court analyzed the cited exception concluding that the public agencies which had invoked it on behalf of a private entity met their statutory burden of proof. There, the Court observed:
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).
In general, KRS 61.878(1)(c)2., and its four subparts, are thus "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 . . . ." 01-ORD-87, p. 8; 01-ORD-143. However, an unsupported allegation that such records are confidential or proprietary will not avail. In the appeal before us, no proof is presented that the disputed records were confidentially disclosed to the agencies or that they are generally recognized as confidential or proprietary. Indeed, the agencies provide no indication, either general or specific, what records are implicated by the requests or of what the responsive records consist. Accordingly, the agencies fail to meet their burden of proof in denying Ms. Slaven's request, and the denial constitutes a violation of the Open Records Act.
As in the referenced open records decisions, the McCreary County Judge/Executive and Office of Economic Development may be able to build a successful case that some records, or portions of records, responsive to Ms. Slaven's requests qualify for protection under KRS 61.878(1)(c)2.a. Although the exception is facially inapplicable to the minutes of the McCreary County Industrial Development Authority meeting that she expressly requested, the exception may well apply to, among other records, "financial statements and a detailed description of the [applicants'] financial stability. ..." Hoy at 767. It is, however, incumbent on the County Judge and Office of Economic Development to build the case by identifying, in general terms, the records or portions of records withheld, and articulating a denial relative thereto in terms of the three-part test codified in the exception. In failing to properly respond to The McCreary County Record's request, and to articulate the basis for their denial of responsive records or portions of records in terms of KRS 61.878(1)(c)2.a., the McCreary Judge/Executive and the McCreary County Office of Economic Development violated the Open Records Act.
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.
Jon L. FleischakerBlaine PhillipsTim DuncanMichelle Wilson