NOT TO BE PUBLISHED
96-ORD-164
July 26, 1996
In re: Jeffrey M. Sanders/Natural Resources and Environmental Protection Cabinet
Open Records Decision
This matter comes to the Attorney General on appeal from the Natural Resources and Environmental Protection Cabinet's partial denial of Jeffrey M. Sanders's request to inspect “[t]elephone notes and report written by Peyton Adams, Report number KY009131, [and a]ny and all related documents.” Mr. Sanders represents Daviess County in matters related to solid waste management. He explains that on June 3, 1996, the Cabinet received a telephone complaint about past waste management practices at the Daviess County landfill. A Cabinet employee, Peyton Adams, briefly summarized these oral allegations in an environmental incident report, and prepared a more extensive “Report on Complaint of West Daviess County Landfill, KY009131.”
A copy of the complaint and report was then forwarded to the county's environmental engineer with directions to investigate. The complaint did not disclose the identity of the informant, and indicated that he or she had requested anonymity. The name of the complainant and other personally identifiable information had been masked. Having been unsuccessful in his efforts to obtain unredacted copies of these records, Mr. Sanders submitted a formal open records request to the Division of Waste Management's regional office, as well as its Frankfort office. That request was partially denied.
The Cabinet relied on KRS 61.878(1)(a) in support of its decision to withhold the name and address of the person who made the complaint, along with personally identifiable information. The Cabinet also withheld records which disclose “the
Cabinet's deliberative process, including the attorney-client privilege relationship, any materials prepared in anticipation of litigation, and any records that would harm any on-going enforcement case. KRS 61.878(1)(h)-(j)[sic].” In closing, the Cabinet stated:
Consistent with the exclusions provided in these two exemptions, the Cabinet will produce the following items, redacted to omit information exempted from inspection by KRS 61.878(1)(a), in response to your request:
1. Environmental Incident Report recorded by Peyton Adams on 6-3-96.
2. Report on Complaint on West Daviess County Landfill on June 3, 1996--KY009131 written by Peyton Adams.
These are the only final documents which were located relating to your request. Any drafts or informal notes on these documents, if the [sic] exist, are withheld under KRS 61.878(3)(h) and (i) [sic].
It is unclear what, if any, records were withheld under the latter exemptions.
In a follow-up letter to this office, the Cabinet elaborated on its June 18 response to Mr. Sanders's request. Kathryn R. Matheny, an attorney for the Cabinet, reiterated that portions of the complaint and report were redacted to protect the identity of the complainant, but that “the factual matters in the report including the specific list of alleged incidents at the landfill were released on page 2.” Continuing, she observed:
The reason for the redaction in the record released was to protect the identity of the informant. The information redacted relates to the person's identity and statements made by the informant which would identify that person to the county. No substantive factual information on the allegations against the landfill was redacted from the report. If desired, the Cabinet will produce under seal, a copy of the full report for an in camera inspection by the Assistant Attorney General to verify this statement. . . . Additionally, an informant's identity is also protected under KRS 61.878(1)[(h)]. [1]
With respect to the Cabinet's invocation of KRS 61.878(1)(i) and (j), improperly referred to as KRS 61.878(1)(h) and (i), Ms. Matheny explained:
These exemptions were listed because of the breath [sic] of the request made by Daviess County. The request asked for “any and all related documents” to Incident Report No. KY009131. Since the request was broad, the Cabinet cited these exemptions from the open records request to protect any preliminary notes maintained by L. Peyton Adams or any earlier drafts of this document. These types of documents are preliminary in nature and would be subject to the exemption set forth in KRS 61.878(1)(i). Further, to the extent the request asked for any follow-up reports, they may be subject to protection under KRS 61.878(1)(j).
In summary, the Cabinet argued that all relevant factual matters were disclosed to Mr. Sanders, and that those portions of the records which were withheld are clearly exempt pursuant to KRS 61.878(1)(a) and (h). We concur.
This office has long recognized that the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure. KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]
In OAG 84-315, we analyzed this exemption as it relates to a complainant's identity, commenting:
[A]lthough in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (1982) and Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (1983), the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
Second, the standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. . . .
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the [public agency]. . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
OAG 84-315, p. 4, 5. See also, OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12.
On the specific facts of this case, we believe that this opinion, as well as subsequent opinions in which it is cited with approval, are dispositive of this appeal. Because there is a compelling privacy interest, here strongly substantiated by the complainant's repeated requests for anonymity, and a de minimus public interest in disclosure, here substantiated by the Cabinet's assurances that all relevant factual matters have been disclosed, and by Mr. Sanders's failure to explain how the county's investigation will be hampered if the complainant's identity is not disclosed, we find that the Cabinet has met its statutory burden of proof relative to the invocation of KRS 61.878(1)(a). Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 829 (1994) (holding that “[d]isclosure of the information appellant seeks would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny”). [2]
Nevertheless, we find that the Cabinet erred in failing to specifically identify all other documents which it withheld, and explain how the remaining exceptions apply to those documents. A public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101. In OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting, “KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested.” We explained:
If the documents exist and inspection is denied, you should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in OAG 90-26, at page 4, we categorically stated, “If a record of which inspection is sought does not exist, the agency should specifically so indicate.”
In its original response, and its subsequent correspondence with this office, the Cabinet vaguely suggested that there may be other records which, although properly exempt, would otherwise satisfy Mr. Sanders's request. We believe that the Cabinet is obligated to ascertain if any such records exist, and if so, identify those records and briefly explain how the cited exceptions apply.
Turning to the issue of the timeliness of the Cabinet's response, we find that the response was procedurally deficient. KRS 61.880(1) provides:
Each public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Mr. Sanders's original open records request was tendered on June 10, 1996. At the Cabinet's request, he resubmitted his request on a preprinted form on June 13. The Cabinet issued its response on June 18. The Open Records Act does not require applicants to submit their requests on preprinted forms, although it does permit agencies to require that the request be in writing, “signed by the applicant, and with his name printed legibly on the application, describing the records to be inspected.” KRS 61.872(2). Nor does the Act permit public agencies to postpone their response to a legitimate written request while they await resubmission of that request on their preprinted form. To the extent that the Cabinet failed to respond to Mr. Sanders's original request within three business days, that response was procedurally deficient.
In closing, we note that this is not a case where KRS 61.878(5) mandates agency sharing of otherwise exempt information. KRS 61.878(5) provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
This provision is aimed at avoiding duplication of public agency efforts, and is grounded in the notion that the recipient agency will responsibly and appropriately use the information. As a precondition to its invocation, a public agency seeking access to another agency's records must demonstrate that those records are “serving a legitimate governmental need or [are] necessary in the performance of a legitimate government function.” Inasmuch as the Cabinet has disclosed all relevant factual material contained in the complaint and report, and Mr. Sanders has offered little more than a bare allegation that the county's investigation will be hampered by partial nondisclosure, we believe that no governmental need would be served by full disclosure. Moreover, the peculiar facts giving rise to this appeal suggest that there are compelling reasons for withholding the complainant's identity. Finally, it appears that there is a possibility of future enforcement action which might be jeopardized by disclosure of the complainant's identity, and that at some point in the future these agencies may find themselves in adversarial positions. Accordingly, we do not believe that KRS 61.878(5) is applicable to this appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
aps/788
Distributed to:
Jeffrey M. Sanders
Sullivan, Mountjoy, Stainback & Miller
100 St. Ann Building
P. O. Box 727
Owensboro KY 42302-0727
Kathryn R. Matheny
Office of Legal Services
Cabinet for Natural Resources and
Environmental Protection
Fifth Floor
Capital Plaza Tower
Frankfort KY 40601
[1] Improperly referred to as KRS 61.878(1)(g), and hereinafter referred to as KRS 61.878(1)(h).
[2] Because the Natural Resources Cabinet is apparently contemplating prospective enforcement action if proper remedial measures are not undertaken, and thus the alleged violations are still under investigation, we believe that the Cabinet's reliance on KRS 61.878(1)(h) to withhold the complainant's identity is also justified. That provision excludes disclosure from:Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.]