NOT TO BE PUBLISHED
March 28, 1994
In Re: The Kentucky Post/Kentucky Transportation Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal in connection with the attempt of The Kentucky Post newspaper to obtain various documents from the Kentucky Transportation Cabinet.
In a letter to the Commissioner of the Department of Administrative Services of the Kentucky Transportation Cabinet, dated February 24, 1994, Ms. Monica Dias, a reporter for The Kentucky Post, requested access to various documents. Included among the records requested were "daily inspection reports and the state engineer's diaries from Sept. 1, 1993, through the present."
Charles L. Harman, Assistant to the Custodian of Records, Department of Administrative Services, Transportation Cabinet, replied to Ms. Dias in a letter dated March 16, 1994. While information pertaining to several categories of documents was made available, Mr. Harman advised Ms. Dias as follows relative to the particular documents involved in this appeal:
However, I regret to inform you that the Cabinet is prohibited from releasing the resident engineer dairies [sic] and Daily Inspectors Reports related to this project. KRS 61.878(2)(h) and (i) exempt notes that do not give final action or express opinions.
61.878(2)(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a Public Agency;
61.878(2)(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In his letter of appeal to this office, dated March 18, 1994, and received on March 21, 1994, Mike Farrell, Managing Editor, The Kentucky Post, challenged the Transportation Cabinet's denial of access to records "regarding the resident engineer diaries and daily inspectors reports for reconstruction of Interstate 75 in Kenton County from Fort Wright to the Ohio River." Mr. Farrell denies the applicability of the statutes cited by the Transportation Cabinet and maintains that the documents involved have been open on many previous occasions when The Kentucky Post sought to review them.
In connection with the duty of a public agency in regard to its response to a request to inspect and copy records, KRS 61.880(1) not only requires the public agency to respond in writing within three business days of its receipt of the request but also:
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.
The public agency said it would not furnish copies of the resident engineer diaries and daily inspector reports and it cited KRS 61.878(2)(h) and (i) in support of its decision. (Those statutory provisions are correctly cited as KRS 61.878(1)(h) and (i).)
The requesting party disputes the applicability of the statutory provisions cited, maintaining that the documents requested are not preliminary drafts, notes or correspondence and that they are not preliminary memoranda in which opinions are expressed.
The public agency did not describe in any way the nature of the records withheld and it did not explain at all how the exceptions cited apply to the specific documents withheld. The requesting party furnished "accompanying samples" which would indicate that if the documents in question in fact resemble the "samples" they would not be covered by the exceptions to public inspection.
In 93-ORD-6, copy enclosed, at pages 2-3, we cited KRS 61.880(1) and dealt with the public agency's failure to comply with those statutory requirements:
Dr. Whitlock's response was deficient insofar as he failed to cite the exception or exceptions authorizing nondisclosure, and he failed to briefly explain how the exceptions applied to the records withheld. OAG 90-26; OAG 90-112; OAG 91-176. The burden of proof in sustaining a public agency's denial of a request for records rests with the agency. KRS 61.880(2); KRS 61.882(3). To meet its statutory burden of proof, an agency must identify all documents withheld from inspection, and state the specific reasons for withholding those documents.
It is the decision of this office that the Kentucky Transportation Cabinet has not satisfied the requirements of KRS 61.880(1) in that it has failed to state how the exceptions to public inspection it cited applied to the specific records it withheld from inspection. The Cabinet has failed to sustain its statutory burden of proof. It should promptly arrange for The Kentucky Post's personnel to inspect the requested records.
The Kentucky Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the adverse party pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
The Kentucky Post
421 Madison Avenue
Covington, KY 41011
Charles L. Harman
Assistant to the Custodian of Records
Department of Administrative Services
State Office Building
Frankfort, KY 40622