Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Labor Cabinet ("Cabinet") violated the Open Records Act in its disposition of Sean Herman's open records request for fifteen types of records relating to Westlake Vinyl's Calvert City Facility. For the reasons stated below, we find that the Cabinet did not violate the Act in withholding records under exemptions for personal information, preliminary records, confidential records, and trade secret records. The Cabinet could not locate certain records responsive to the request, and a referral to the Department for Library and Archives is warranted for the Cabinet's inability to locate those records The Cabinet also asserted that certain records were exempt under the attorney-client privilege, but did not produce those records for in camera review by this Office, thus failing to meet its burden to establish the exemption.
In an October 24, 2017, request to the Cabinet, Sean Herman ("Appellant") requested notices of inspections, inspections, citations, notifications of penalties and various other records 1 related to the Cabinet's enforcement of occupational safety and health standards at Westlake Vinyl's Calvert City facility ("Westlake"). The Cabinet informed Mr. Herman that it would need additional time to respond to the request and explained that the request included seventeen (17) inspections dating back to 1996. On November 29, 2017, the Cabinet provided documents responsive to Appellant's request, partially denying his request in so far as it included documents and information that the Cabinet determined were exempt from disclosure under the Open Records Act. The Cabinet noted the information and documents it redacted, and provided specific justification for the redactions.
In its response, the Cabinet also informed Appellant that it would be withholding trade secret information and would be providing the employer asserting the protection, Westlake, an opportunity to articulate the grounds upon which it asserted the protection. On January 4, 2018, the Cabinet received Westlake's response and, after reviewing the response, the Cabinet notified Appellant that it agreed with Westlake's justification that the withheld records constituted trade secret records and were therefore exempt from release. Appellant then filed his appeal with the Office of the Attorney General. In his appeal, Appellant did not specify that any particular records were improperly being withheld, nor did he identify any specific exemptions as being in error.
On appeal, the Cabinet provided to this Office the records as they had been disclosed to Appellant, and explained its reasoning for redacting or withholding records, or parts of records. On April 3, 2018, this Office requested to review the unredacted records responsive to Appellant's request. The request was for an in camera review under the authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and records were provided by letter dated April 9, 2018. The Cabinet declined to provide portions of two records, asserting that producing those records could waive the attorney-client privilege.
Records redacted pursuant to KRS 61.878(1)(a) . The Cabinet redacted portions of the records produced, claiming they were exempt pursuant to KRS 61.878(1)(a). The Cabinet explained that information redacted pursuant to this provision included information such as home addresses, home email addresses, medical records, gender, marital status, date of birth, Social Security numbers, employee/personnel numbers, and banking numbers.
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny, " while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The Kentucky Court of Appeals has analyzed the public interest in open records as follows:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink , the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " Id.
This Office has also had occasion to affirm the "categorical redaction" of identifying information of private individuals (such as the case here) pursuant to Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). 2 See, e.g. , 14-ORD-067. The information withheld by the Cabinet under KRS 61.878(1)(a) has no manifest bearing on how it performed its public duties, and therefore this identifying information was properly subjected to categorical redaction under KRS 61.878(1)(a).
Records redacted pursuant to KRS 61.878(1)(i) and (j) . The Cabinet relied on KRS 61.878(1)(i) and (j) 3 in redacting information that was "preliminary" in nature. Specifically, pursuant to these provisions the Cabinet redacted the occupational safety and health compliance officer's rough work notes.
It is well-settled that work notes generated by an occupational safety and health compliance officer in the course of inspecting/investigating a work site, which contain preliminary handwritten drafts of possible citations, along with the observations and opinions of the compliance officer, and correspondence with private individuals which are not intended to give notice of final action, may properly be withheld in accordance with KRS 61.878(1)(i). In addition, work papers and interoffice memoranda containing opinions and recommendations relative to the investigation are exempt from public inspection pursuant to KRS 61.878(1)(j). To summarize, work notes containing a compliance officer's observations, opinions and preliminary drafts of possible citations, and preliminary recommendations and memoranda may be withheld pursuant to KRS 61.878(1)(i) and (j). 05-ORD-168; 05-ORD-133; 03-ORD-249; 03-ORD-232; 03-ORD-072; 02-ORD-157; 01-ORD-223; 99-ORD-120; 03-ORD-38; 92-ORD-441; OAG 92-90; OAG 89-64; OAG 88-9; OAG 87-68; OAG 86-57; and OAG 86-3. Our in camera review of the withheld records confirmed the Cabinet's characterization of these records as exempt preliminary records.
KRS 338.101(1)(a) . Equally well-settled is the principle that employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) 4 that are included among those records in an investigative file are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 5 In OAG 84-345, this office construed the phrase "question privately," as used in KRS 338.101(1)(a), to render any statement so acquired confidential and therefore exempt from mandatory disclosure. 05-ORD-168; 92-ORD-1441; OAG 92-20; OAG 89-64; OAG 88-67; OAG 88-36; OAG 88-9; OAG 87-79; OAG 87-68; OAG 87-25; OAG 87-9; OAG 86-57; OAG 86-37; OAG 86-27; OAG 82-192. 6 The employee interview statements were properly withheld pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(l).
Trade Secrets Confidential Pursuant to KRS 338.171 . The Cabinet explained that the request included certain records which Westlake maintains are exempt as trade secrets. Westlake's letter of justification explained that these documents are part of its safety and health program, and contain descriptions of Westlake's internal personnel training programs for various testing, collection and operating procedures specific to Westlake's particular manufacturing and production process. The information also includes descriptions of a number of processes for the monitoring, maintenance, and inspection of equipment utilized for different phases of the production process, and contains specific information regarding the use, function, or application of a substance in the process. Finally, two of the documents at issue are Master Services Agreements governing the relationship, terms and conditions between Westlake and independent service providers for specific work performed at Westlake's facility.
KRS 338.171 7 requires the Cabinet to keep confidential any information obtained during an occupational safety and health inspection that might reveal a trade secret. KRS 338.171 only requires that the records "might" reveal a trade secret to prohibit disclosure. 07-ORD-166. The response from Westlake identifying why the documents were trade secret was thorough and well supported as to why these records contain trade secrets. The Cabinet agreed with Westlake's analysis as to why the documents were trade secret. After reviewing these records in camera , we agree with Westlake's description of the records as trade secret records that are exempt pursuant to KRS 338.171 .
In 07-ORD-166, regarding a request for similar records from the Cabinet, we stated:
According to [the Cabinet], the records "were obtained during an OSH Inspection, they were considered confidential and are not being requested for an OSH proceeding." A "trade secret" is defined as: "A secret formula, method or device that gives one an advantage over competitors." The American Heritage College Dictionary, 1457 (4th ed. 2002). Disclosure of records "involving the company's procedures for processing materials" not only "might" reveal a trade secret, the lesser standard expressly adopted by the General Assembly, it necessarily would assuming that the "pictures and information" are properly characterized as "trade secrets. " Because the record supports rather than refutes the [Cabinet]'s contention that all three requirements are satisfied, the Attorney General must conclude that pictures and information concerning the procedures employed by Dupont for processing materials qualify for protection under KRS 338.171. In the absence of evidence to the contrary, this office has no basis for concluding otherwise given the clearly expressed legislative intent.
Id. , p. 9. This appeal mirrors the facts in 07-ORD-166. The records were obtained during occupational safety and health inspections of Westlake, the records are considered confidential by Westlake, and are not being requested for an occupational safety and health proceeding. We conclude that the Cabinet properly withheld these records pursuant to KRS 338.171, as incorporated into the Open Records Act by KRS 61.878(1)(l).
Confidential disclosures under KRS 61.878(1)(c)1 . In its responses regarding the request, the appeal, and our request for documentation, the Cabinet (and Westlake) also relied upon KRS 61.878(1)(c)1. as an additional basis for withholding the records identified as confidential by Westlake. 8 Having determined that the records confidentially disclosed to the Cabinet are exempt under KRS 338.171, we will not further belabor this decision by an analysis of the exemption provided under KRS 61.878(1)(c)1.
Attorney-Client Privilege . The Cabinet's response to Mr. Herman, November 29, 2017, explained that:
Blank pages 35 and 36 in the LGL section of inspection number 304294937 and the redacted portions on pages 11-12 in the NAR section of report number 310657770 represent exempted attorney-client privileged documents. The document under this exemption are emails between attorney and client regarding litigation and a written memorialization of an attorney-client privileged conversation.
Although the Cabinet provided a succinct description of the portions of the records redacted pursuant to attorney-client privilege, it refused to provide the records for our in camera review pursuant to our request under KRS 61.880(2)(c). 9 As we noted in 16-ORD-101, the Kentucky Court of Appeals has affirmed the Attorney General's authority to obtain documentation from a public agency to facilitate the review of an open records appeal. Cabinet for Health & Family Serv. v. Todd Cnty. Standard, Inc., 488 S.W.3d 1 (Ky. App. 2015). Explicitly included in this Office's authority under KRS 61.880(2)(c) is the ability to "request a copy of the records involved." We made that request in this case, in view of the fact that "[t]he burden of proof in sustaining the action shall rest with the agency." KRS 61.880(2)(c).
The Cabinet's refusal to make the confidential disclosure of the disputed records for in camera review has "frustrated the Attorney General's statutory review under KRS 61.880." Todd Cnty. Standard, Inc., supra, p. 8. As such, the Cabinet "cannot benefit from intentionally frustrating the Attorney General's review of an open records request; such result would subvert the General Assembly's intent behind providing review by the Attorney General under KRS 61.880(5)." Id. Accordingly, the Cabinet has failed to meet its burden of proof under KRS 61.880(2)(c) for those portions of records withheld pursuant to the attorney-client privilege.
Lost Records . In its November 29, 2017, response to Appellant, the Cabinet stated that the photographs pertaining to inspection numbers 314959388 and 310076641, and certain appendices for inspection numbers 304294937, could not be located. The Cabinet explained the measures taken in the search for the photographs: searching the inspectors' physical and electronic files; searching the Cabinet's servers; searching other inspectors' physical and electronic files; a general site search; and reviewing records sent to the Kentucky Department for Library and Archives for storage. Regarding the appendices, the Cabinet stated that these "were large rolled documents which were stored in boxes in a locked equipment room. The documents have been moved several times over the past years as the needs of [the Cabinet] have changed. The agency has looked in the locations in the agency's office building in which the documents were stored and the documents were not found." It appears, therefore, that the Cabinet has lost, misplaced, or inadvertently destroyed the photographs and two appendices in question.
If the Cabinet has destroyed, deleted, or simply misplaced responsive records, this would not substantively violate the Open Records Act per se , because a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the records may have been lost or improperly destroyed by the Cabinet, which would create a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss or improper destruction of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for action as that agency deems warranted.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Appellant requested the following records from the Cabinet: (1) Notices of Inspection issued to Westlake by the Kentucky Labor Cabinet from March 1, 1990 to present; (2) Inspections by the Kentucky Labor Cabinet from March 1, 1990 to present; (3) Complaint letters issued to Westlake by the Kentucky Labor Cabinet from March 1, 1990 to present; (4) Citations, notifications, and/or penalties issued to Westlake by the Kentucky Labor Cabinet from March 1, 1990 to present; (5) Orders for abatement issued to Westlake by the Kentucky Labor Cabinet and/or Kentucky Occupational Safety and Health Review Commission; (6) Enforcement cases brought against Westlake by the Kentucky Labor Cabinet; (7) Settlements, judgments, or consent decrees agreed upon by the Kentucky Labor Cabinet with Westlake; (8) Payment of any civil penalty by Westlake to the Kentucky Labor Cabinet; (9) Draft and final agendas relating to any meeting between the Kentucky Labor Cabinet and any Westlake representative; (10) Reports drafted or received by the Kentucky Labor Cabinet; (11) Presentations made by any Westlake representative to the Kentucky Labor Cabinet; (12) Notes regarding any meeting or conference involving the Kentucky Labor Cabinet; (13) Inter-agency referral involving the Kentucky Labor Cabinet and any other federal or state governmental agency; (14) Internal communications, including electronic correspondence, between any state employee and regarding any of the above matters; and, (15) External communications, including electronic correspondence, involving the Kentucky Labor Cabinet.
2 In Kentucky New Era, Inc. , the Kentucky Supreme Court stated: "We agree that with respect to discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." 415 S.W.3d, at 89.
3 KRS 61.878(1)(i) and (j) exempt from disclosure:
"(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" and,
"(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
4 KRS 338.101(1)(a) provides:
"(1) In order to carry out the purposes of this chapter, the commissioner or his authorized representative shall have the authority: (a) To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee's representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness." (Emphasis added.)
5 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
6 In 92-ORD-1441, the Attorney General observed that employee statements are also exempt from inspection by virtue of KRS 61.878(1)(i) and (j) as evidenced by the cited line of decisions.
7 Pursuant to KRS 338.171: "All information obtained by the executive director in connection with any inspection or proceeding under this chapter which might reveal a trade secret shall be considered confidential except that such information may be disclosed to those persons concerned with carrying out this chapter or when relevant in any proceedings under this chapter. In any such proceedings, the executive director, review commission or courts shall issue such orders as may be appropriate to protect the confidentiality of trade secrets."
8 KRS 61.878(1)(c)1. allows agencies to withhold: "[R]ecords 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[.]"
9 KRS 61.880(2)(c), in pertinent part, states: "The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."