NOT TO BE PUBLISHED

95-ORD-14

February 8, 1995

In Re: William Jeffrey Pribble/Scott County Fiscal Court

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Scott County Fiscal Court's denial of Mr. William Jeffrey Pribble's open records request to inspect the field notes, calculations and other materials that were used in the preparation of, and were incorporated in, the American Engineering Company report on Mr. Pribble's culvert and flooding complaint to the Scott County Fiscal Court.

By letter dated October 5, 1994, Mr. George Lusby, Scott County Judge/Executive, on behalf of the Scott County Fiscal Court denied Mr. Pribble's request stating:

Pursuant to the Contract between the Scott Fiscal Court and American Engineering, and specifically Article 11 thereof, it is agreed that the "... Consultants' reports, plans, specifications, field data, field notes, laboratory test data, calculations, estimates, and other similar documents are instruments of professional service, not products. The client recognizes that no such documents should be subject to unauthorized re-use, that is, re-use without written authorization of the consultant to do so."

American Engineering is not willing to release the calculations that this report is based on to anyone other than Scott Fiscal Court. Without that consent the County could be guilty of breach of Contract.

Should the Attorney General opine that this information be available for inspection, the Fiscal court would be free of any constraints.

To begin, the Scott County Fiscal Court's denial is procedurally defective in that it fails to state the specific exception, set forth in KRS 61.878, which authorizes it to withhold the requested records and a brief explanation of how the exception applies to the documents withheld. KRS 61.880(1).

Secondly, the Scott County Fiscal Court's position, that it cannot disclose the calculations upon which American Engineering Company's report was based because of a contract clause which prohibited re-use without the company's authorization, is not supported by a recognized exception of the Open Records Law.

In OAG 83-256, we held that an agency can promise confidentiality as far as the permissive exemptions permit, and such a promise should be honored. In OAG 88-1, we held that a promise of confidentiality could be honored as long as it was not inconsistent with the provisions of the Open Records Act.

In OAG 90-7, this office opined that a contractor to a governmental agency must accept certain necessary consequences of involvement in public affairs. Such a contractor runs the risk of closer public scrutiny than might otherwise be the case.

The denial in this case does not state that the calculations and other documents incorporated in American Engineering's report constitutes confidential or proprietary information. Moreover, the Open Records Law does not allow public records to be exempted from disclosure by contract. They must be exempt by a statutorily recognized exemption.

As we noted in OAG 83-256, at p. 4:

A public agency cannot abrogate the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884. A public agency can, as was done in the case of the RFP discussed herein, promise confidentiality as far as the permissive exemptions permit and such a promise should be honored.

The calculations and other information that were incorporated in or made a basis of the report should be made available for inspection. The public should be allowed to check the accuracy of figures and information which form the basis of a study done for a public agency and paid for by public funds. This is particularly so where no exception from disclosure is cited.

It is the decision of this office that the agency acted inconsistently with the Open Records Law when it withheld the requested records from inspection. Accordingly, the records should be made available for Mr. Pribble's inspection.

The Scott County Fiscal Court may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/1447

Distributed to:

Hon. George Lusby

Scott County Judge/Executive

Court House, Main Street

Georgetown, KY 40324

Mr. William Jeffrey Pribble

511 Mt. Gilead Church Road S

Sadieville, KY 40370