Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Radiation Health Branch of the Cabinet for Health and Family Services failed to meet its statutorily assigned burden of proof 1 in denying Douglas M. Beek's July 29, 2013, request for records identifying "all specific radioactive material license holders, general licensees, and all x-ray registrants in the state of Kentucky . . . [including] the name of the facility, address, city, state, zip code, phone number, name of the radiation safety officer, and the NRC program code or an equivalent description of the license type . . . ." 2 It is the decision of this office that 05-ORD-175 and 09-ORD-100, copies of which are attached hereto and incorporated by reference, are dispositive of the issue presented in this appeal. Accord 12-ORD-136. Although the branch argues that the requested records "describe the exact physical location of hazardous chemical, radiological, or biological materials" per KRS 61.878(1)(m)1.h., its recitation of the language of the exemption, "standing alone, is not sufficient to satisfy the burden of proof" 3 that disclosure would have "a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act" 4 as defined in KRS 61.878(1)(m)2. Here, as in 05-ORD-175 and 09-ORD-100, "the agency's failure to meet its burden of proof in establishing a reasonable likelihood of threatening the public safety, the linchpin upon which the language of the exemption turns" constrains us to find against the Radiation Health Branch.
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:
Douglas M. BeekCurt PendergrassDavid T. Lovely
Footnotes
Footnotes