Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Corbin violated the Kentucky Open Records Act in denying Tad Thomas's April 6, 2011, request for "[c]opies of any and all documents pertaining to Victory Sports, Inc., Blountville, TN, including, but not limited to, copies of all contracts for events held at The Arena at the David L. Williams Southeastern KY AG and Expo Complex," and a "copy of the personnel files of all persons employed at the arena at the David L. Williams Southeastern KY AG and Expo Complex, including a job description." 1 As in prior decisions, including 04-ORD-175, this office must conclude that the public agency has not satisfied its burden of proof relative to KRS 61.878(1)(c)1. in denying access to the requested contracts and other unspecified records. Even assuming that the first two elements of this exception have been satisfied, the record on appeal is devoid of any evidence beyond a bare assertion to substantiate that disclosure of such records would permit an unfair commercial advantage to Victory Sports, Inc.; likewise, the City's blanket denial of access to public employee personnel files is contrary to existing legal precedents, namely 03-ORD-012.
In a timely written response, Robert P. Hammons, in his capacity as legal counsel for the City, responded to Mr. Thomas's request, in relevant part, as follows:
4. . . . Copies of the requested documents are exempt from disclosure pursuant to KRS 61.878(1)(c)[1.] because the requested documents contain information confidentially disclosed to the City of Corbin, Kentucky, and are generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the subject party that disclosed the records. Further, other parties contracting with the City of Corbin, Kentucky, and other venues are competitors of the subject party and potentially doing business with the City of Corbin, Kentucky/Arena and other venues and disclosure of the subject party's business and financial affairs could place the subject party and the City of Corbin, Kentucky/Arena at an unfair commercial advantage with their competitors. 2
6. . . . Copies of the requested documents are exempt from disclosure pursuant to KRS 61.878(1)(a) because . . . the personnel files of all persons employed contain [sic] information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. The request for public disclosure of all information of employees is [overbroad] and would disclose some information concerning employees that is protected from public disclosure.
Acknowledging that "certain information relevant to those contracts is exempt from disclosure, " Mr. Thomas correctly noted that "the burden is on the public agency to show why [KRS 61.878(1)(c) 1.] applies." Mr. Thomas also correctly argued that in the City's response, "it fails to provide any justification whatsoever as to why any part of the contract or its supporting documents are subject to this exemption, much less why all of the documents are subject to this exception." (Original emphasis.) 3
In his view, the analysis contained in 08-ORD-253 is dispositive with regard to application of KRS 61.878(1)(c)1. As Mr. Thomas observed, in that decision the Attorney General held that documents regarding the contractual relationship between Northern Kentucky University and SMG (which manages the Bank of Kentucky Center owned by NKU) were subject to public disclosure and "that documents generated by SMG in negotiations with Feld Entertainment were public records. " Although the documents were protected under KRS 61.878(1)(i) and (j), Mr. Thomas noted, SMG would have otherwise been required to produce them. Mr. Thomas persuasively asserted that even less of an issue exists here "because the contracts between Victory Sports and the City of Corbin are direct contracts with a public agency. " 4 Citing 03-ORD-012 (holding that a request for a complete personnel file was adequately specific) and 10-ORD-226 (holding that agency denial of request for personnel file because request was too broad or the records were protected under KRS 61.878(1)(a) violated the Act), Mr. Thomas then argued that the City's response to his request for personnel records also constituted a violation of the Open Records Act.
Upon receiving notification of Mr. Thomas's appeal from this office, Mr. Hammons briefly supplemented his response on behalf of the City, maintaining that its original response was not deficient. Mr. Hammons relied upon that response, further observing as to item 4 that said records "contain financial data of the [Victory Sports], the terms and conditions of a negotiated business contract between the [Victory Sports] and the [City], and information [Victory Sports] would not ordinarily share with its competitors, the disclosure of which competitors of [Victory Sports] could use against [it] in future competitive business dealings." In support of this position, the City cited
Southern United Medigroup, Inc. v. Hughes, 952 S.W.2d 195 (Ky. 1997) and
Marina Management Service, Inc. v. Commonwealth of Kentucky, Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995) as well as OAG 86-41, OAG 92-66, 08-ORD-083, and 09-ORD-015, without further elaboration. 5 Mr. Hammons also "relie[d] upon" its original response as to item 6, citing OAGs 90-83 and 91-203 as further support.
By letter dated May 2, 2011, Mr. Thomas argued that even after the City's response to his appeal, with regard to item 4 "the fact remains that it has failed to give any reason whatsoever why these documents should be considered confidential and exempted from the Kentucky Open Records Act. " He cited
University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 377 (Ky. 1992) (burden is on public agencies to prove that a public record is exempt and the exemptions must be "strictly construed. . . .") in support of this position. Mr. Thomas further noted that in Southern United Medigroup, KRS 61.878(1)(c)1. was construed to apply in the "narrow circumstances of a health insurance carrier which objected to submitting documents pertaining to its rate filings in a public hearing." The Kentucky Supreme Court "simply determined that the hearing officer's decision to consider the documents as not subject to disclosure was not an abuse of discretion." It went on to state, Mr. Thomas observed, "that 'we would add that because words and phrases such as 'confidential, ' 'proprietary, ' and 'unfair advantage,' apply with more or less strength to a variety of documents, the effect of protecting a given document from scrutiny by the public and potential intervenors should be considered in the balance." With regard to Marina Management Service, Inc., Mr. Thomas noted that the "'balance' referenced in Southern United Medigroup tipped in favor of nondisclosure because the 'needs for these records [did not] outweigh [] the protections [afforded by KRS 61.878]...' where 'the purposes of the Committee [seeking the records] can still be achieved without requiring disclosure of documents deemed confidential. '"
Mr. Thomas distinguished each of the opinions/decisions upon which Mr. Hammons relied as follows:
[T]he documents sought in OAG 92-66 included financial records not specifically sought under Request Number Four, such as "operating income and expenses," a "general balance sheet," and a "statement showing an analysis of each fund, outstanding deposits, withdrawals, and beginning and ending balances." This is the same case in 08-ORD-083, where "copies of credit card agreement and contracts..." were held exempt from the Open Records Act. The records at issue in OAG 86-41 were held exempt from the Open Records Act pursuant to KRS 61.878(1)(b), which is an exemption for documents including "records . . . compiled and maintained for scientific research [or] in conjunction with the regulation of a commercial enterprise, including mineral exploration records...." The records at issue in OAG 86-41 related to "ambient emissions from the burning of hazardous waste fuel," and are entirely unlike the contract documents of the City of Corbin sought under Request Number Four. The records at issue in 09-ORD-015, furthermore, pertain to the internal business contracts of Star Drywall, Inc., and its various subcontractors, whereas the documents sought under Request Number Four pertain to contracts between a governmental entity and a promoter that it employed. The documents at issue in 09-ORD-015 were also tax documents, which have always been accorded special treatment under the Open Records Act.
In closing, Mr. Thomas clarified that his request did not include "any documents pertaining to the internal workings of Victory Sports, LLC, but rather those pertaining to the relationship between Victory Sports, LLC, and the City of Corbin, most specifically the contracts between the two for events held at the David L. Williams Southeastern KY AG and Expo Complex." The City, Mr. Thomas reiterated, "has failed to give any reason whatsoever why these documents should be considered confidential and be exempted from" disclosure under the Open Records Act. We agree.
To successfully invoke KRS 61.878(1)(c)1., 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.
03-ORD-064, p. 5. Citing the legislative declaration of policy found at KRS 61.871, and the mandatory language of KRS 61.880(2)(c), the Attorney General has consistently recognized that he is "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. " 99-ORD-88, citing 96-ORD-221, p. 2.
KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, it provides that 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. " 6 Accordingly, the Kentucky Court of Appeals has observed that "[t]he 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."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the Court observed, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. Although the City referenced the statutory exception it relied upon, it merely parroted the language contained therein, failing to provide even a brief explanation of how the exception applies to the records withheld or identify which records were being withheld. It only improved upon this minimally in responding to Mr. Thomas's appeal. Absent proof that the records in dispute were confidentially disclosed to the City or required to be disclosed to it, are generally recognized as confidential or proprietary, and are of such a character that disclosure would provide an unfair commercial advantage to competitors of Victory Sports, this office must conclude that the City has failed to substantiate its position.
On at least two occasions, the Kentucky Supreme Court has analyzed this provision, concluding that the public agencies which had invoked it on behalf of a private entity had met their statutory burden of proof. In Marina Management Services, Inc., above, the Court held that records containing financial information of privately owned marina operators were exempt from disclosure. The Court reasoned that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. In so doing, the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditor's Office. On these facts alone, the exemption clearly applies.
Id. at 319. The Parks Department adduced sufficient proof to support invocation of the exemption.
Similarly, in
Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766, 768 (Ky. 1995), the Court found:
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).
Again, the public agency from which access to confidentially disclosed records of a private corporation was sought established that those records were generally recognized as confidential or proprietary. 7 No such evidence has been presented here.
These cases, along with the cited open records decisions, demonstrate that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. That exception "is 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, if disclosure of those records would place the private entities at a competitive disadvantage." 97-ORD-66, p. 10 (emphasis added). 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 qualified for exclusion." Id., p. 10. Noticeably absent from the record, as in 04-ORD-175, is any documentation to substantiate the City's assertion that all responsive documents fall within the parameters of KRS 61.878(1)(c)1. See 09-ORD-010 (record on appeal was devoid of evidence that disclosure of responsive Owner's Manual would "permit an unfair commercial advantage" to competitors of Michelin).
The reasoning of 04-ORD-175 is controlling here; a copy of that decision is attached hereto and incorporated by reference. See 07-ORD-166 (holding that agency's removal of the company's "procedures for processing materials" as "Trade Secrets" that would "generally be recognized as confidential or proprietary and were so marked" was improper as the agency conceded that "specific information regarding the competitive harm [the company] might suffer" was lacking and then assumed that such a disclosure "would result in commercial advantage to competitors" without elaborating). Compare 06-ORD-172 (finding that evidence of record, including a copy of the letter sent by the company to Department requesting that all information released to OSHA remain confidential and explaining how disclosure would permit an unfair commercial advantage to competitors, justified invocation of KRS 61.878(1)(c)1.). Although the City argued that information contained in the requested contracts as well as the rest of the unidentified responsive documents was "confidentially disclosed" to it, despite having two opportunities the City has not established that all of the information is "generally recognized as confidential or proprietary, " nor has the City demonstrated the unfair commercial advantage that would result from disclosure as required to successfully invoke KRS 61.878(1)(c)1. See 04-ORD-175; 07-ORD-166. In so holding, this office does not imply that the City cannot build a case under KRS 61.878(1)(c)1. for withholding portions of the responsive contracts and/or possibly some of the other documents, in part or in whole, only that the City has not done so here. See 09-ORD-010; 09-ORD-050.
As in 09-ORD-010, this office "recognizes that in some instances the details of the confidential and proprietary nature of documents may not be readily available or recognizable to a public agency. " Id., p. 6. Because the agency is ultimately the party responsible for satisfying its burden of proof in excluding documents from inspection under KRS 61.878(1)(c)1., however, "in those instances where a public agency has been asked to disclose information it believes may be confidential or proprietary in nature, best practice would be for the agency to notify the entity most interested in protecting the confidential nature of the document(s)." Id. Just as the circuit court would allow a party to intervene for the purpose of protecting the confidentiality of its documents, the Attorney General would permit input from the private third party whose information was at issue in cases where KRS 61.878(1)(c)1. is being invoked. Id. The City did not do that here nor did it otherwise adduce sufficient proof to justify its reliance on KRS 61.878(1)(c)1. Given this determination, the remaining question is whether the City erred in denying access to public employee personnel files in their entirety on the basis of KRS 61.878(1)(a) because "some information" contained therein is protected.
In 03-ORD-012, 8 this office held that the Berea Independent School District had improperly denied a request for the complete personnel record s of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id., p. 7; 08-ORD-175. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. See 07-ORD-192. As the Attorney General has frequently observed, there is ample authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. . . . In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. . . . Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. . . . Such matters are unrelated to the performance of public employment. Employee evaluations 9 have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. 10 "These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment." 93-ORD-32, p. 3; 00-ORD-090. Because the requested files contain both excepted and nonexcepted material, the City is permitted to redact any excepted material, but is required to make any nonexcepted material available for inspection or copying after the City identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) 11 and KRS 61.880(1). See 08-ORD-175.
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.
Distributed to:
Tad ThomasWillard McBurneyRobert P. Hammons
Footnotes
Footnotes
1 Mr. Thomas also requested four additional categories of public records but advised in his letter of appeal that the City "produced documents responsive to three of [six] requests, and denied the existence of documents responsive to a fourth." Because Mr. Thomas only takes issue with the City's denial of his request as to items 4 and 6, identified above, our analysis focuses exclusively on the City's denial of his request for those items.
2 Although the City relied on KRS 61.878(1)(a) in the alternative, it merely quoted the language of that exception without providing any explanation of how it applies to the records withheld. This omission violated KRS 61.880(1) and renders further discussion of this argument unnecessary as the agency has not satisfied its burden of proof under KRS 61.880(2)(c).
3 Mr. Thomas further argued that the City "fails to make any argument as to why the personal privacy exception applies to public contracts with a private business," and this failure to provide any justification "is a deficiency in and of itself" under KRS 61.880(1) and Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Relying upon a series of decisions (then called opinions) beginning with OAG 77-394 and ending with OAG 91-70, Mr. Thomas asserted that "contracts between a public agency and a private entity which details the rights and obligations of the parties are clearly in the public interest and should be accessible." As previously indicated, in the absence of any fact-specific explanation of how KRS 61.878(1)(a) applies, the Attorney General finds the City's argument regarding KRS 61.878(1)(a) unpersuasive.
4 In footnote 4 on page 6, this office found "unpersuasive the Center and SMG's reliance on KRS 61.878(1)(c)1." Citing 01-ORD-87, the Attorney General noted that all of the records were held "by SMG as custodian on NKU's behalf and not records of a private entity. The only competitive disadvantage described redounds to the detriment of the Center and SMG, not Feld, the private entity, whose records might otherwise qualify for protection under this exemption. "
5 In response to Mr. Thomas's contrary assertion, the City noted that KRS 61.878(1) "is not limited to individuals but also applies to private entities such as [Victory Sports]." Because its argument regarding KRS 61.878(1)(a) is otherwise deficient, as previously indicated, further discussion is unwarranted.
6 As the Attorney General has consistently recognized:
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 [an 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.
01-ORD-232, p. 4, citing 97-ORD-41, p. 6.
7 This office has recognized that while a public agency may give assurances of confidentiality relative to public records, those assurances will only be accorded deference to the extent that they are consistent with one or more exceptions to the Open Records Act. See, e.g., OAG 79-413; OAG 90-13; 92-ORD-127. The record in this appeal is devoid of any specific facts or evidence that such assurances were given beyond the City's quotation of the relevant statutory language.
8 In 03-ORD-213, the Attorney General relied on 03-ORD-012 in disputing the agency's characterization of all information contained in personnel files except for disciplinary records as "personal." Likewise, this office cannot uphold the blanket denial which prompted the instant appeal.
9 More recently, the Kentucky Court of Appeals affirmed the public's general right of access to personnel files of public agency employees and went one step further in requiring the disclosure of non-personal information contained in the performance evaluations of public employees when disclosure is warranted under the circumstances. Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006).
10 A public employee's date of birth may also generally be withheld per KRS 61.878(1)(a). See 07-ORD-141; 04-ORD-143. Likewise, the Attorney General has recognized that home telephone numbers are protected under KRS 61.878(1)(a). See 00-ORD-97.
11 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for inspection. "