NOT TO BE PUBLISHED
March 2, 1993
IN RE: Christian D. Wallace/Sanitation District No. 1
of Campbell and Kenton Counties, Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of Sanitation District No. 1 of Campbell and Kenton Counties relative to Mr. Christian Wallace's October 19, 1992, request to inspect certain records in the District's custody. Those records relate generally to one of the District's users, Emerald Industries, Inc., a cookie manufac- turer. The specific document at issue in this appeal is a multi-page "Industrial Waste Questionnaire/Permit Application" submitted by Emerald as a precondition to issuance of a permit.
In a letter dated October 20, 1992, Mr. Gary R. Richardson, General Manager of the Sanitation District, denied Mr. Wallace's request for the questionnaire. Although he indicated that he would treat Mr. Wallace's letter as an open records request, he did not cite a specific exception authorizing nondisclosure, but instead advised that "a lot of the information on this questionnaire is only applicable to Emerald Industries, Inc., and may reveal proprietary information."
In his letter of appeal to this Office, Mr. Wallace argues that the District erred in failing to segregate nonexempt information from information deemed "proprietary." Continuing, he observes:
I do not believe that there is sufficient reason to deem any of the information as 'proprietary' information. No attempt was made by the agency to explain why the information was 'proprietary.' Finally, I do not believe that the Kentucky law allows a 'proprietary' exemption.
On behalf of his client, the Sanitation District, Mr. Thomas J. Birchfield responded to these arguments in a follow-up letter to this Office. He maintained that the questionnaire is exempt from public inspection, pursuant to KRS 61.878(1)(h), "because it is a preliminary document completed as part of the process of obtaining a Discharge Permit from the District and is not indicative of a final agency action." Moreover, he argues that the questionnaire contains information about Emerald's processes and methods of production which is proprietary and therefore not properly subject to public inspection. Forced disclosure, he asserts, will have a chilling effect on prospective users, discouraging them from "fully and accurately completing the Questionnaires."
In support of his position, Mr. Birchfield cites OAG 87-58, in which this Office held that a public health department properly denied a request to inspect documents pertaining to an application to install a sewage disposal system since those records were preliminary in character. In addition, he cites Section 533 of the District's Rules and Regulations which authorizes the District to withhold information involving its users' methods of production "[t]o the extent that divulging such information would cause the publication of a trade secret or allow competing firms to gain a competitive advantage . . . ." Mr. Birchfield states that by examining the information on the questionnaire, a competitor can determine "how much Emerald was producing and how much ingredients were being used in the production process." To facilitate our review, Mr. Birchfield provided the Attorney General with a copy of the questionnaire along with the District's Rules and Regulations.
The issue presented in this open records appeal is whether the Sanitation District properly denied Mr. Wallace's request to inspect the "Industrial Waste Questionnaire/Permit Application" submitted by Emerald Industries, Inc., and used by the District in determining whether to issue a dicharge permit. For the reasons set forth below, we conclude that the District improperly denied the request, and must promptly arrange for Mr. Wallace to inspect the questionnaire by providing him with a copy.
Among those records which may be excluded from the application of the Open Records Act, in the absence of a court order directing disclosure, are:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]
KRS 61.878(1)(h). As Mr. Birchfield correctly notes, this provision, along with KRS 61.878(1)(i), were deemed to authorize nondisclosure of records relating to the evaluation of proposed building sites and the installation of private sewage systems in OAG 87-58. In that opinion, however, the decision whether to issue a permit had not yet been made. Thus, no final action had been taken by the public agency. We concluded that the documents pertaining to the obtaining of a permit to install a sewage disposal system were "merely preliminary documents which constitute part of the process to obtain a permit at some future time," and could properly be withheld "at this time." OAG 87-58, at p. 4. (Emphasis added.) Although OAG 87-58 does not expressly hold that such records lose their exempt status upon issuance of a permit, we believe that this principle is implicit in the opinion.
This principle finds support in a number of other opinions issued by this Office. In OAG 79-69, we held that information required for the obtaining of a permit is a public record, and therefore subject to inspection.1 Similarly, in OAG 81-246, we held that information on industrial waste gathered by employees of the Metropolitan Sewer District for, among other purposes, the development of an industrial permit program was not exempt pursuant to KRS 61.878(1)(h) and (i). We rejected the argument that the records consisted of intra-office memoranda in which opinions are expressed and policies formulated, noting that the information on the forms was statistical, "the results of scientific measurements and tests and not preliminary in the statutory sense." OAG 81-246, at p. 3; see also, OAG 83-163. Although we acknowledged that a competitor of a particular private industry might have an interest in knowing the volume, constituents, and chemical makeup of that industry's waste waters, we were unable to see what interest MSD might have in protecting such secrets. Finally, in OAG 80-444, we held that information appearing on an application for a bank charter which was material to the Department of Banking's approval of that application was subject to public inspection. If, therefore, the Department elicited information from applicants, and had the information on file, the information was a matter of public record. We believe that these opinions support the proposition that the
1In OAG 79-69, we upheld the agency's decision to withhold surveys containing information submitted by various industries because the response to the survey was voluntary rather than mandatory. Their responses were therefore considered correspondence with private individuals, and exempt pursuant to KRS 61.878(1)(h). See also, OAG 90-13.
public is entitled to know what information a public agency relies on in determining whether a permit will issue, unless that information is specifically exempted from the operation of the Open Records Act.
With respect to Mr. Birchfield's argument that the District's Rules and Regulations invest the District with broad discretion to withhold information relating to its user's methods of production, we find that these provisions conflict with KRS 220.130, governing the records of sanitation districts. That statute provides:
The records of the district shall have 'Sanitation District Records' printed, stamped or written thereon. They shall be kept at the office [of the district] and shall be open to inspection as are the records of the fiscal court.
(Emphasis added.) This Office has consistently recognized that a public agency's promise of confidentiality can only be honored if it is consistent with the Open Records Act, and any other statute governing access to the agency's records. The Sanitation District cannot abrogate the mandatory provisions of the Open Records Act, and the statutes governing sanitation districts generally, by a promise of confidentiality.
The Open Records Act authorizes an agency to withhold:
Records confidentially disclosed to an agency, 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, and which are compiled and maintained:
a. In conjunction with an application for a loan;
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
c. For the grant or review of a license to do business.
KRS 61.878(1)(c)1.a., b., c. It is, however, incumbent on an agency which relies on this provision to establish that the records were confidentially disclosed, are generally recognized as confidential or proprietary, such that disclosure would permit an unfair commercial advantage to competitors, and that the records were submitted either in conjunction with an application for a loan, in conjunction with the regulation of a commercial enterprise, or for the grant or review of a license to do business. Mr. Birchfield has not established that the questionnaire was confidentially disclosed to the agency, or that the information contained on the questionnaire is generally recognized as confidential or proprietary. Moreover, we do not believe the records were submitted in conjunction with the regulation of a commercial enterprise. The Sanitation District regulates wastewater discharge, and not the production of cookies. We therefore find KRS 61.878(1)(c) to be inapposite.
To summarize, we find that any information required for the obtaining of a permit is a matter of public record, and is subject to inspection unless specifically exempted by law. The Sanitation District cannot abrogate the mandatory provisions of the Open Records Act, and the statutes governing sanitation districts generally, by a promise of confidentiality.
Sanitation District No. 1 of Campbell and Kenton Counties may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Christian D. Wallace
1514 17th Street, N.W., #400
Washington, D.C. 20036
Hon. Thomas J. Birchfield
Greenebaum, Doll & McDonald
3300 First National Tower
Louisville, Kentucky 40202-3197
Mr. Gary R. Richardson
Sanitation District No. 1
of Campbell & Kenton Counties
1045 Eaton Drive
Ft. Wright, KY 41017