TO BE PUBLISHED 

October 25, 1994

In re: Susan E. Schneider/Transportation Cabinet

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Ms. Susan E. Schneider, an attorney representing an undisclosed client, to the Transportation Cabinet on June 1, 1993. Ms. Schneider requested a print-out of the Rail-Highway Grade Crossing Database. Specifically, she requested access to:

Additionally, Ms. Schneider requested this information on "all private at-grade crossings of the railroad tracks in this same geographic space . . . ."

Pursuant to 93-ORD-70, in which this Office held that persons seeking access to governmental databases must submit a statement of purpose, Ms. Schneider advised that the

information would not be used for a commercial purpose, for discovery in a federal or state court proceeding, or in an action for damages, but would instead be used to assist her client "in accessing [sic] the installation of a safe railroad crossing [,]" and thus to promote railroad safety.

On behalf of the Transportation Cabinet, Mr. Joseph Heady responded to Ms. Schneider's request on June 16, 1993. Mr. Heady provided her with the information the Cabinet had "on file" relative to her request.

One year later, Ms. Schneider submitted a new and expanded request to the Transportation Cabinet, soliciting "further assistance in interpreting categories and data, as well as some additional data."

On June 21, 1994, Commissioner Jon D. Clark responded to Ms. Schneider's renewed request, advising her that the information she sought was not located in the Cabinet's office, but that her request would be forwarded to the Division of Planning for research. Commissioner Clark further advised her that she should expect a response by June 30, 1994, at which time "anything which is not protected under the Open Records Law" would be mailed to her.

In his June 30 response, Commissioner Clark furnished Ms. Schneider with "the information [the Cabinet has] on file" relative to her request. Continuing, he noted:

In a follow-up letter dated August 2, Commissioner Clark acknowledged that an explanation regarding portions of Ms. Schneider's request was omitted. Asserting that the information provided to Ms. Schneider on June 30 is "the only information available under the Open Records Act," he explained

that "based on 23 U.S.C., Section 409 . . . and subsequent determinations from [the Cabinet's] Office of General Counsel, certain information in the rail highway grade crossing database is not subject to discovery under the Open Records Act." Thus, although portions of Ms. Schneider's June 15, 1994, request were satisfied, much of the information requested was withheld.

We are asked to determine if the Transportation Cabinet violated the Open Records Act in denying Ms. Schneider's request. For the reasons set forth below, we conclude that the Cabinet's response was both procedurally and substantively violative of the Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Commissioner Clark's June 21 response was procedurally deficient insofar as he failed to cite the specific exception upon which the Cabinet relied in partially denying her request. Although Commissioner Clark complied with KRS 61.872(5) by notifying Ms. Schneider that the requested records were not immediately available for inspection, explaining the reasons for delay, and designating the date on which inspection would

be permitted, he failed to cite the exception to public inspection, codified at KRS 61.878(1)(a) through (l), upon which he relied in partially denying her request or explain how the exception applied to the records withheld. In his June 30 follow-up letter, Commissioner Clark cited what he considers to be the applicable federal prohibition, on release but failed to cite the applicable open records exception, KRS 61.878(1)(j).

This office has long recognized that the 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, p. 5; 93-ORD-142. We again urge the Cabinet to review the cited provision to insure that future responses conform to the Act.

Turning to the substantive issues raised in this appeal, we find that the Transportation Cabinet improperly denied Ms. Schneider's request. The Cabinet's position is premised on 23 U.S.C. 403. That statute provides:

The Transportation Cabinet argues "that if the information is available under the Open Records law, it will be impossible for the Cabinet to keep the information from being discovered or introduced as evidence." (March 19, 1993, memorandum from Stephen Reeder, General Counsel, to Joe Heady, Custodian of Records.) It is therefore the Cabinet's position that 23 U.S.C. 409 prohibits disclosure of the information sought, and that that prohibition is incorporated into the Open Records Act by operation of KRS 61.878(1)(j).

Ms. Schneider responds:

Because 23 U.S.C. 409 does not bar the use of the data for other purposes, KRS 61.878(1)(j) can not, in Ms. Schneider's view, be appropriately invoked by the Cabinet to withhold the records from her client. We concur.

By its express terms, 23 U.S.C. 409 applies to "law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying[,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, . . . or for the purpose of developing any federal highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds . . . ," and provides that these records "shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages . . . ." The scope of the federal statutory prohibition is thus relatively narrow. It does not authorize a public agency to adopt a policy of blanket nondisclosure relative to such records. Our analysis of existing caselaw suggests that the issue of disclosure has only arisen in the context of civil litigation.

This, in turn, suggests that the statute was not intended to operate as an absolute bar to disclosure.

That Cabinet acknowledges that 23 U.S.C. 409 was enacted "to prohibit federally required record-keeping from being used at a 'tool . . . in private litigation.'" Light v. State, 149 Misc.2d 75, 560 N.Y.S.2d 962, 965 (Ct.Cl. 1990). It is instructive, however, to examine the entire text of the quotation from which this language is extracted. The New York Court of Claims recognized that:

Light, supra at 965. Thus, "[t]o facilitate candor in administrative evaluations of highway safety hazards, 23 U.S.C. 409 prevents a court from receiving records of such evaluations into evidence." Duncan v. Union Pacific Railroad Company, Utah App., 790 P.2d 595, 597 (1990). (Emphasis added.) It does not prevent disclosure of the information for purposes unrelated to litigation.

We attach significance to Congress's particular choice of words. Had Congress intended the statutory prohibition to have broader scope, it could have erected an absolute bar to disclosure. We must assume that Congress purposely employed the narrower terms. 94-ORD-19. Moreover, we do not share the Cabinet's concern that "if the information is available under the Open Records law, it will be impossible for the Cabinet to keep the information from being discovered or introduced as evidence." 23 U.S.C. 409 does erect an absolute bar to the discovery or admission into evidence of the information encompassed by 23 U.S.C. 409. Parties are not entitled to introduce evidence of inadmissible data even if it is obtained from an indirect, secondary source. See e.g., Robertson v. Union Pacific Railroad Company, 954 F.2d 1433 (8th Cir. 1992). Although the information is available for other uses and purposes, the statute's mandatory language requires the exclusion of such evidence at trial. Id.

Although we find that the Transportation Cabinet erred in failing to release the requested records for the stated purpose, and that it is obligated to make those records available for inspection, we are not empowered to impose sanctions on the Cabinet for violation of the Act as Ms. Schneider requests. Our authority is defined by statute. Pursuant to KRS 61.880(2)(a), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party asks that he do so, and to issue a written decision stating whether the agency violated the Open Records Act. 94-ORD-8; 94-ORD-108. Sanctions, where appropriate, must be imposed by the courts.

Ms. Schneider and the Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

Amye B. Majors

Assistant Attorney General

lil/1227

Distributed to:

Hon. Jon D. Clark

Commissioner

Department of Administrative Services

Transportation Cabinet

Frankfort, Kentucky 40622

Hon. Susan E. Schneider

Maple & Associates

Suite 100

440 S. Seventh Street

Louisville, Kentucky 40203-1902