NOT PUBLISHED 

94-ORD-37

March 15, 1994

IN RE: Paul Barrick, Jr./Transportation Cabinet

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. Paul Barrick, Jr., to the Transportation Cabinet on January 4, 1994. Mr. Barrick requested access to "the Engineer's estimate of cost for the highway project in Mason County that Geupel Const. was the low bidder [sic]." In a response dated January 7, 1994, Mr. Don C. Kelly, P.E., Secretary of the Transportation Cabinet, denied Mr. Barrick's request, advising him:

In lieu of the engineer's estimate, Secretary Kelly released a copy of the Unit Tabulation of Bidders to Mr. Barrick.

Unable to resolve this dispute on the facts presented, this Office requested additional information from the Transportation Cabinet of February 4, 1994. Pursuant to KRS 61.880(2), we asked that Secretary Kelly substantiate his position by complying with the procedural requisites of the Open Records Act. Specifically, we asked that he identify the exception upon which the Cabinet relies, and explain how it applies to the engineer's estimate. In view of the time constraints imposed on the Attorney General in issuing a decision under the Act, we requested that the Cabinet respond to our inquiry within five business days. We received no response to this request.

We are asked to determine if the Transportation Cabinet violated the Open Records Act in denying Mr. Barrick's request. For the reasons set forth below, we conclude that the Cabinet's actions constitute a procedural violation of the Act, and that although it may have properly withheld the disputed record under one or more of the eleven exceptions codified at KRS 61.878(1)(a) through (k), it failed to meet its burden of proof in denying the request, and must release the engineer's estimate forthwith.

KRS 61.880(1) contains guidelines for agency response to an open records request. That section provides that "[a]n 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." Secretary Kelly's response was deficient in at least two respects. First, he failed to cite any exception to the Act authorizing nondisclosure of the engineer's estimate. Second, he failed to briefly explain how the exception applies to the record withheld. In addition, he failed to respond to our request for additional information to substantiate his position pursuant to KRS 61.880(2). We urge Secretary Kelly and the Cabinet to review the cited provision to insure that future responses conform to the Open Records Act.

KRS 61.880(2) and 61.882(3) place the burden of proof in sustaining agency action in an open records appeal 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 it applies to the record withheld. See, e.g., 92-ORD-1020; 93-ORD-43; 93-ORD-86; 93-ORD-110. In the present appeal, the Cabinet not only failed to offer any explanation of how an exception applies, it failed to cite any exception. A denial of an open records request must be articulated in terms of the requirements of the statute. The custodian of records thus has the burden of justifying the withholding of a record by reference to a specific statutory exception.

Although the Cabinet was afforded two opportunities to satisfy its burden of proof, first in its initial denial of Mr. Barrick's request, and second in response to our request under KRS 61.880(2), it failed to do so. We therefore order the release of the engineer's estimate which is at issue in this appeal to Mr. Barrick. This is not to say that the Transportation Cabinet could not properly withhold such a record under one of the exceptions codified at KRS 61.878(1)(a) through (k). Nor do we intend to establish a rule of general application relative to engineer's estimates. Our decision is limited to the facts presented in this appeal, and turns on the Cabinet's failure to sustain its burden of proof.

The Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

par/60

Distributed to:

Hon. Don C. Kelly, P.E.

Secretary

Transportation Cabinet

State Office Building

Frankfort, KY 40622

Mr. Paul Barrick, Jr.

Business Manager

Kentucky Laborers' District Council

1994 By Pass - South

Lawrenceburg, KY 40342-9754