May 30, 1996

In re: Tom FitzGerald/Transportation Cabinet


This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of Mr. Tom FitzGerald's open records request to inspect certain records relating to the Old Third Street Road Highway Construction Project, Jefferson County, Kentucky, that is being undertaken by Hidden Hollow Construction Company under contract to the Cabinet.

Specifically, Mr. FitzGerald requested to inspect the following documents:

1. A copy of any and all complaints received from residents owning structures or land in the 9000 block of Old Third Street, and including the residence of Richard Rapp at 9116 Lakeridge Drive, alleging damaging to land or structures believed to be associated with the highway construction activities undertaken by Hidden Hollow Construction Company under contract to the Department of Highways or Ky. Transportation Cabinet.

2. A copy of all correspondence between your agency and any third parties relative to the alleged damage to structures and land resulting from the Hidden Hollow construction project, including but not limited to correspondence to and from Hidden Hollow Construction Company, Maryland Life and Casualty Insurance, or any principals or agents of either company.

3. A copy of any trip reports, results or reports of inspection or investigation, or other documents reflecting the inspection, investigation, or any testing undertaken by your agency in response to complaints concerning the construction project received from residents along Old Third Street Road, and including those residing or owning property in the 9000 block of that road.

Mr. Kenneth R. Smith, Commissioner, Department of Administrative Services and Custodian of Records, Transportation Cabinet, denied Mr. FitzGerald's request, stating:

Please be advised that we will be unable to provide the requested documents at this time. According to our District 5 Office which is located in Louisville, Kentucky, this project has not been finalized. Therefore, based on KRS 61.878(1)(i) of the Open Records Law, “Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final actions of a public agency,” and KRS 61.878(1)(j) which states, “Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended,” are exempt from inspection. However, once this project has been finalized you may again request these documents.

We are asked to determine if the Transportation Cabinet properly denied Mr. FitzGerald's request. For the reasons set forth below, we conclude that the Cabinet failed to meet its burden of proof in sustaining its denial of the requested records and, therefore, its response was inconsistent with the Open Records Act.

KRS 61.880(1) sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. That subsection requires that if the public agency denies all or any portion of the request, the written response must include a statement of the specific exception authorizing the withholding and a brief explanation of how the exception applies to the records withheld. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

KRS 61.880(2)(c) provides, in part, “The burden of proof in sustaining the action shall rest with the agency. . . .”

KRS 61.882(3) provides, in part, “In an original action or an appeal of an Attorney General's decision . . . the burden of proof shall be on the public agency.”

This Office has consistently recognized that an agency fails to satisfy its burden of proof when it merely invokes an exception without providing an adequate explanation of how the exception applies to the records withheld as required by KRS 61.880(2) and KRS 61.882(3). 94-ORD-37.

In denying Mr. FitzGerald's request, the Cabinet did little more than recite the language of the exceptions. It failed to explain how the records regarding property damage claims against the Transportation Cabinet or a contractor of that agency, could be characterized as preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated in relation to the completion of the Old Third Street Project. The fact that the Project has not yet been completed does not address the status of individual damage complaints and whether they have been adjudicated. We therefore conclude that the Cabinet failed to meet its burden of proof in sustaining its action, and the requested records must be made available for Mr. FitzGerald's inspection.

This is not to say the Cabinet could not properly withhold the requested documents upon sufficient proof that the documents fell under one of the exceptions codified at KRS 61.878(1). Our decision is limited to the facts presented in this appeal and turns on the Cabinet's failure to sustain its burden of proof to justify the withholding of public records. Accordingly, due to the Cabinet's failure to meet this burden, we are left with no alternative but to direct the release of the requested records to Mr. FitzGerald.

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:

Tom FitzGerald, Director

Kentucky Resources Council, Inc.

P. O. Box 1070

Frankfort, Kentucky 40602

Kenneth R. Smith, Commissioner

Department of Administrative Services

and Custodian of Records

Transportation Cabinet

State Office Building

Frankfort, Kentucky 40622