NOT TO BE PUBLISHED 

March 2, 1993

93-ORD-22

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:

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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:

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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