Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Commercial Mobile Radio Service Board (CMRS Board) violated the Kentucky Open Records Act in partially denying Thomas P. O'Brien III's July 6, 2011, request, submitted on behalf of his client, TracFone, Inc., for "Any and all documents, including but not limited to communications, shared between or among anyone at the CMRS Board (including, but not limited to, staff and Board members) and anyone at the Kentucky Legislative Research Commission ("LRC"), including the LRC's Program Review and Investigations Committee (including, but not limited to, staff or Committee members)" for the period of October 1, 2010, to present. The CMRS Board ultimately identified five categories of responsive documents, 1 agreeing to release three of those categories by letter dated August 12, 2011, and subsequently agreeing to release a fourth; accordingly, the only documents remaining in dispute are those identified as "approximately 250 emails between members of the CMRS Board and/or staff and the Committee relating to the Committee's study of 911 services currently in progress. " Having reviewed the subject emails (approximately 500 pages, including attachments, many of which are partially duplicative threads) in camera per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, 2 this office agrees that all of the e-mails fall within the parameters of KRS 6.910(5) and/or 6.915(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 3
Following a series of correspondence with Executive Director Joe Barrows, Office of the 911 Coordinator/CMRS Board, Mr. O'Brien initiated this appeal on behalf of TracFone, arguing that the CMRS Board failed to satisfy its burden of proof under KRS 61.880(2)(c) in denying access per KRS 6.910 and 6.915. Specifically, TracFone asserted that "KRS 6.910(5) merely allows the Committee to maintain the confidentiality of information it obtains. Nowhere does the statute even mention the party that provides the information to the Committee." In TracFone's view, "KRS 6.910(5) does not secure confidentiality for communications and documents from the Board merely because they were sent to the Committee. It only protects the confidentiality of information held by the Committee." KRS 6.910(5) does not prevent a state agency from honoring a request for such information "any more than it would prevent a private entity from voluntarily revealing the information that it transmitted to the Committee."
Citing
Marina Management Services v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318, 319 (Ky. 1995), TracFone further argued that the purpose of KRS 6.910(5), "to allow the Committee freedom to review and investigate various governmental programs" and "function more effectively by guaranteeing to maintain the confidentiality of information it gathers," is not served "in any way . . . by allowing the Committee to require the concealment of previously non-confidential information." According to TracFone, the Board's interpretation of KRS 6.910(5) "renders an absurd result" as, under its reasoning, the CMRS Board "or any other government entity can immunize information from an Open Records Act request by merely transmitting it to the Committee." TracFone then observed that KRS 61.878(1)(l) "does not create any additional privilege" but merely "confirms that the Act does not preempt other statutorily provided privileges that may insulate certain records." Because "no other enactment of the General Assembly makes confidential the communications and documents sent by the Board to the Committee," in TracFone's view, KRS 61.878(1)(l) does not justify the Board's denial.
TracFone lastly asserted that the Board's reliance on KRS 6.915(3) was misplaced as it "has failed to prove that the records" in dispute were requested by the Committee. In order to "claim this privilege," TracFone contended, "the Board must demonstrate when and where the particular records sought were requested by the Committee." Even if some information was, in fact, provided at the Committee's request, TracFone reasoned, the Board has "failed to provide any evidence at all that the records sought by us have been classified as confidential. " Under TracFone's interpretation, KRS 6.915(3) does not prohibit disclosure of all information provided at the request of the Committee; rather, it allows the state agency "to classify such information as confidential, upon which classification it is not subject to release under the Open Records Act. "
Upon receiving notification of Mr. O'Brien's appeal on behalf of TracFone from this office, Jonathan D. Goldberg responded on behalf of the CMRS Board which, as he explained, "is charged with, among other things, administering the wireless 911 emergency system in the Commonwealth." Mr. Goldberg offered the following context in which to review this matter:
The [Committee] voted at its January 13, 2011, meeting to conduct a study of 911 services and funding in Kentucky and initially met with CMRS Board staff to discuss the study on January 24 and February 25, 2011. The Committee sent correspondence to the CMRS Board on March 1, 2011, requesting certain information to assist in its study of how 911 services are provided and funded [A copy was attached to Mr. Goldberg's response.] The correspondence notes that the "study might require access to proprietary information" and that such information "will be kept confidential. " The Committee requested additional information from the CMRS Board in correspondence dated March 28, 2011 [attached to Mr. Goldberg's response] and requested more extensive information in correspondence dated May 20, 2011 [attached to Mr. Goldberg's response]. The CMRS Board has shared information and documents with the Committee pursuant to its requests.
Quoting the relevant language of KRS 6.910(5), Mr. Goldberg then observed that "information obtained by the Committee and staff is to be treated as confidential and TracFone has not cited to any operating rules or procedures adopted by the Committee which would allow release of the information provided by the CMRS Board." This confidentiality requirement, he explained, "was confirmed by the Committee in its request for information from the CMRS Board, wherein the Committee stated that information provided by the CMRS Board would be kept confidential. "
Noting that TracFone cited Marina Management Services , "presumably in an attempt to distinguish the case" from the current appeal, the CMRS Board refuted TracFone's apparent position that "documents provided by the CMRS Board to the Committee were not otherwise confidential like the financial records at issue in Marina Management, " which "is unfounded and is contradicted by the clear and unambiguous language of KRS 6.910(5)." Further, the acknowledged purpose of that provision "is served by the statutory requirement that information provided to the Committee will be treated as confidential. " The General Assembly "has enacted legislation which makes information obtained by the Committee confidential, " namely, KRS 6.910(5), and such information, the CMRS Board argued, has therefore "been 'otherwise made confidential by enactment of the General Assembly' in KRS 6.910(5)," the protections of which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In further support of this position, the CMRS Board cited prior decisions in which this office found "that public agencies did not violate the Open Records Act by refusing to provide information deemed confidential by statute, as such statutes are incorporated by reference" into the Act by operation of KRS 61.878(1)(l). 4
The CMRS Board further disputed TracFone's interpretation of KRS 6.910(5), arguing, in the alternative, that "even if KRS 6.910 is not applicable, KRS 6.915(3) is a corollary to 6.910 and specifically provides protection for confidential information supplied to the Committee at its request." Quoting the relevant language of KRS 6.915(1), which requires state agencies to provide the Committee "with 'necessary information for the performance of its duties' to conduct the research or study," the CMRS Board noted that state agencies "are required to provide for review and inspection any public or confidential information requested by the Committee and are required to make employees available for interviews. " Even if the information provided by the CMRS Board to the Committee is not specifically restricted under the Open Records Act, Mr. Goldberg asserted, the information "may be classified as confidential by the agency and is not subject to release" per KRS 6.915(3). The purpose of KRS 6.915 , is obviously to "encourage state agencies to cooperate fully with the Committee in its investigations, research and studies without fear that documents and information" provided to it will be disclosed to third parties in response to Open Records requests. Without such a statute, "there would be a potential chilling effect on the state agency's response to the Committee's request for information" that would impede the Committee's ability "to fully investigate or study the activities of state agencies. "
Although TracFone seems to imply that the CMRS Board "was required to mark the information 'confidential' and then show that the information was actually marked as confidential, " the CMRS Board explained, KRS 6.915 does not require such action or "prescribe any other requirements" for designating the information as confidential. Rather, the CMRS Board "is allowed to withhold all documents it deems to be confidential and asserts that the 250 emails between the CMRS Board and the Committee, as well as any other documents which are directly related to the Committee's study, are not subject to release" per KRS 6.915(3) . In response to TracFone's argument that no proof has been presented to establish that the Committee actually requested the information being withheld from the CMRS Board, Mr. Goldberg pointed to exhibits 1-3 attached to his response, identified above, which "clearly demonstrate that the Committee has requested extensive information from the CMRS Board pertaining to the Committee's study of 911 services and funding." Based upon the foregoing, the CMRS Board respectfully asked the Attorney General to affirm its denial as to the 250 e-mails remaining in dispute.
Upon becoming aware that an Open Records Appeal involving application of KRS 6.910(5) and 6.915(3) had been filed, Robert Sherman, Director, and Laura H. Hendrix, General Counsel, LRC, advised this office of its position "as an aid to [our] research" on the issues presented. Having quoted the relevant language of each provision, LRC advised:
Simply put, KRS 6.910(5) and 6.915(3) represent two sides of the same coin. The purposes of the "coin," as enacted into law by the General Assembly, are to protect the integrity of ongoing investigations of the operation of state government by the [Committee], and to foster full cooperation by state government agencies in those studies and investigations.
These statutes are very specific in the protection of the confidentiality of records obtained as part of an ongoing legislative study, either in the hands of the [Committee] or the agency which is the subject of the study. The subject agency is permitted to classify all information as "confidential" in order to protect the integrity of a study. These statutes protect not only the study activity of the [Committee], but also the records of agencies that are required to give information to the Committee. This ensures the integrity of a study and avoids the chilling of cooperation between the [Committee] and agencies contacted for information. This confidentiality is crucial to the General Assembly's investigative and fact-finding mission and ensures that the Committee receives all information it needs to conduct its research and produce an objective result.
In closing, LRC asserted that "[a]n absurdity not contemplated by statute results if a party, aware that KRS 6.910 prevents disclosure of records" by the Committee, is allowed to obtain the same records "by simply requesting it of the agency which is cooperating with [the Committee]." Such a result, LRC concluded, "ignores KRS 6.915 and its intended relationship with KRS 6.910." This office agrees. Although the Attorney General has not previously had occasion to construe either provision under the circumstances presented, 5 this office has consistently upheld agency denials based on confidentiality provisions incorporated into the Act. Further, as a rule of general application, this office has consistently deferred to agencies' reasonable interpretations of their own confidentiality provisions in a variety of contexts absent binding legal authority to the contrary. 97-ORD-33 (deferring to Department of Corrections as to interpretation of KRS 197.025(1)); 98-ORD-78 (deferring to then Revenue Cabinet as to interpretation of KRS 131.190); 04-ORD-252 (deferring to Department of Workers' Claims as to interpretation of KRS 342.229 ); 10-ORD-080 (deferring to Cabinet for Health and Family Services as to interpretation of KRS 209.140 in absence of contrary legal authority) . Accordingly, the interpretation by LRC, though not dispositive, is reasonable and thus entitled to a certain level of deference in the absence of statutory or judicial authority to the contrary, none of which has been cited or located here. 6
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Confidentiality provisions found in the Kentucky Revised Statutes, including KRS 6.910(5) and 6.915(3), are unquestionably incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Resolution of this appeal turns on the application of KRS 6.910 and 6.915, which, in relevant part, mandate:
KRS 6.910(5):
Information obtained or prepared by the committee or its staff shall be treated as confidential working papers subject to release according to the operating rules and procedures adopted by the committee. The committee may close certain planning meetings and project briefings to protect research and to allow the exchange of confidential materials. Any information protected by confidentiality agreements or federal, state, or local laws shall not be subject to public release.
KRS 6.915(3)
The contents of interviews with agency personnel conducted by the committee or its staff or information supplied at the request of the committee or its staff, which is not specifically restricted under KRS 61.878, may be classified as confidential by the state agency and not subject to release under KRS 61.872. This subsection does not apply to reports or documents routinely maintained by the agency and subject to release under KRS 61.872.
As with any decision involving statutory application, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In the absence of a specific statutory definition, we "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. , above . When viewed in light of these fundamental principles, the unambiguous language of KRS 6.910(5) and 6.915(3) validates the CMRS Board's position.
The Committee is "designed to '[m]ake studies of the operations of state agencies' to ensure that 'the programs and activities are being operated efficiently, [and] effectively' or to determine '[w]hether there is a need for change in any authorized activity or program.' KRS 6.910." Marina Management Services , above, at 319. Under the literal and mandatory terms of KRS 6.910(5), information obtained or prepared by the Committee or its staff shall be treated as confidential and "subject to disclosure according to the operating rules and procedures" of the Committee. No such rules or procedures have been cited that contradict the CMRS Board's interpretation of KRS 6.910(5) or that would support that of TracFone. Similarly, its companion statute, KRS 6.915(3), expressly authorizes the state agency (CMRS Board) to classify information supplied at the Committee's request (or the content of interviews with agency personnel but none are implicated here) as confidential if not already restricted under KRS 61.878. It does not contain any modifying language restricting its application to information possessed by the Committee. A review of the correspondence attached to the CMRS Board's response to this appeal confirms that the Committee actually requested the information and that it acknowledged the confidential nature thereof in doing so.
The undisputed purpose of these provisions, which must be read in the context of the whole statutory scheme, 7 is to better enable the Committee to effectively perform its function of "review[ing]" (defined at KRS 6.900(3)) state agencies (defined at KRS 6.900(5)) or programs and conducting investigation[s] (defined at KRS 6.900(2)) of elected or appointed state employees or contractors and, to that end, foster cooperation by state agencies and employees with said reviews and investigations of the Committee and ensure the integrity thereof. Simply put, TracFone's interpretation of these provisions would undermine this purpose by creating a chilling effect on the cooperation of state agencies from which information is requested. As the LRC correctly noted, a differing interpretation would enable a requesting party to obtain records not accessible in the possession of the Committee from the cooperating state agency, thus ignoring the intended relationship between KRS 6.910 and 6.915. In construing legislative enactments, the Attorney General must presume "that the legislature did not intend an absurd result."
Commonwealth of Kentucky, Central State Hospital v. Gray, 880 S.W.2d 557, 559 (Ky. 1994).
Although this office is not permitted to reveal the contents of the approximately 500 pages reviewed in camera, they can be generally described as e-mail communications between or among Legislative Analyst Van Knowles and Staff Member Sarah Harp of the Committee, and Executive Director Joe Barrows, Policy Advisor Tandy Simpson Hubbard, and Research Analyst Tom Middleton of the CMRS Board, in addition to various other staff members of the Committee and the Board. The vast majority consist of requests for information made by Ms. Harp to Ms. Hubbard and the exchanges which followed, including attachments, most all of which directly and substantively relate to the ongoing study of 911 services by the Committee. 8 In sum, the e-mails can thus be properly characterized as "[i]nformation obtained or prepared by the committee or its staff, " which "shall be treated as confidential" or "information supplied at the request of the committee or its staff, " which "may" be, and have been classified as confidential by the state agency. "Bearing in mind that the Attorney General is constrained by time and resources from conducting an in-depth inquiry into the issue presented, and that on occasion, the application of the Open Records Act must be determined by a court of law, an avenue that remains open to [TracFone, as explained below,] if [it] disagrees with our decision," 10-ORD-191, p. 5, this office affirms the denial by the CMRS Board as to "approximately 250 emails between members of the CMRS Board and/or staff and the Committee relating to the Committee's study of 911 services currently in progress" on the bases of KRS 6.910(5) and 6.915(3).
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:
William P. O'BrienJoe BarrowsJonathan D. Goldberg
Footnotes
Footnotes
1 Specifically, the Board agreed to release "approximately 700 pages of emails from the LRC sent to the CMRS office, generally advising of meeting times, dates, agendas of the LRC," "approximately 25-30 emails between the CMRS Administrator and staff members of the LRC discussing general matters such as bill drafts, the progress of SB 119, etc.," "a draft annual report" provided to LRC "in response to an Aug. 1, 2011, reporting deadline contained in SB 119," which it believed was a preliminary draft protected under KRS 61.878(1)(j) but nevertheless provided, as well as 15 specific documents provided to the Committee pursuant to "staff requests for information," such as "Enhanced and Basic 911 Services," "List of CMRS Certified PSAPs," "Kentucky Landline Surcharges (2009), "CMRS Grant Award History," "History of all Payments to PSAPs," "Access to 2011 CMRS PSAP Survey results," "911 Cost/Equities Study (2002)," etc.
2 This office made a request under this authority on September 22, 2011, to facilitate a resolution of this matter. The CMRS Board Executive Director Joe Barrows promptly complied.
3 A small percentage of e-mails, or portions thereof, constitute textbook examples of preliminary drafts or preliminary recommendations and opinions protected under KRS 61.878(1)(i) and (j), respectively, the Board's alternative bases for denial as to unspecified responsive e-mails "to the extent they contain" preliminary drafts, etc., unless and until adopted as part of the basis for any final action. The Board failed to justify its denial with adequate specificity per KRS 61.880(1) in this regard; however, information contained in such e-mails also falls within the parameters of KRS 6.910(5) or 6.915(3). Further discussion is therefore unwarranted.
4 A review of these decisions validates the CMRS Board's assertion. This office will not unnecessarily lengthen the instant decision with a summary of the line of decisions establishing the well-established principle that confidentiality provisions codified in the Kentucky Revised Statutes are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). TracFone's counterargument (KRS 6.910 and 6.915 do not apply and "no other enactment" renders the records confidential) is premised on its differing interpretation of KRS 6.910 and 6.915 which, as indicated, this office does not find persuasive.
5 Independent research located only two prior decisions even referencing KRS 6.910 or 6.915, neither of which is directly applicable. See OAG 91-86; OAG 91-222.
6 TracFone's argument relative to Marina Management Services , above, the only existing case, which is not directly on point, is unpersuasive. That case, in the words of the Court, "questions the scope of the exemption contained in KRS 61.878(1)(c) of the Kentucky Open Records Act, addressing whether it applies to a situation where confidential audited financial reports of a privately owned corporation have been submitted to a public agency pursuant to a license agreement with the State." Id. at 319. The Court held that such records were protected under KRS 61.878(1)(c)1. and the Committee could therefore not obtain the records under the Act nor could it disclose information already obtained; however, it was authorized to obtain the records for use in its "evaluation pursuant to KRS 6.910." Id. TracFone presumably cited this case in support of its position that more explicit or direct evidence, such as the license agreement which existed there, must be present for the CMRS Board to classify the e-mails as confidential; however, KRS 6.915(3) does not dictate any certain procedure or method that must be used for this purpose. A review of the correspondence from the Committee requesting information from the CMRS Board confirms the mutual understanding that some or all of the information provided might be confidential. While more specific language or a set procedure might be ideal, this office is not authorized to impose such a requirement where none exists.
7 Like the courts, the Attorney General must "look at the letter and spirit of the statute, viewing it as a whole; and should look also to the circumstances under which it was enacted." City of Owensboro v. Noffsinger, 280 S.W.2d 517, 519 (Ky. 1955).
8 Any exceptions are de minimis and consist, for example, of communications directed at rescheduling a meeting or "Out of Office AutoReply" messages containing no substantive content of any kind. This office notes that KRS 61.878(1)(i) and (j) do not extend protection to such informational exchanges or "conversational-type communications." See 05-ORD-144. The CMRS Board has already disclosed similar types of correspondence to TracFone (described as "general correspondence relating to meeting times and dates," etc.), which may or may not be duplicative in part or in whole, and thus apparently deemed these limited e-mails, or portions thereof, as protected under KRS 6.915(3) or just inadvertently failed to disclose them due to the sheer volume of pages implicated. To the extent such e-mails do not relate to the Committee's ongoing study of 911 services, but are responsive to TracFone's initial, broadly framed request for "any and all" communications . . . , the e-mails were improperly withheld.