NOT TO BE PUBLISHED

97-ORD-47

March 20, 1997

In re: Dayna Bowen Matthew/Louisville Water Company

Open Records Decision

This matter comes to the Attorney General on appeal from the Louisville Water Company's partial denial of the open records request of Ms. Dayna Bowen Matthew, Esq., counsel for E&H Integrated Systems, Inc., to inspect certain of the Water Company's records.

By letter dated January 31, 1997, Ms. Matthew requested copies of any and all documents containing information pertaining to the Louisville Water Company Bid Number 96-62 for Telecommunications System Upgrade. The portion of the request, numerical paragraph 2, which is the subject of this appeal, was for copies of the following records:

All internal memoranda, letters, correspondence, notes, evaluations, reports and other written documents including, but not limited to, unpublished drafts, evaluating, reviewing, analyzing or commenting upon the content of any proposals, drafts of proposals, whether partial or complete, final or preliminary, or other documents received from or presented by BellSouth Telecommunications, Inc., Williams Telecommunications, Inc. or any corporation in connection with the above-referenced RFP.

By letter dated February 6, 1997, Mr. Robert K. Miller, Custodian of Louisville Water Company Records, responded to Ms. Matthew's request by providing copies of other records requested, but denied the portion of the request quoted above. In his response, Mr. Miller states, in relevant part:

The Louisville Water Company declines to provide copies of any documents requested in your numerical paragraph 2 on the grounds that such internal documents are exempt from open records publication pursuant to KRS 61.878(1)(i) and (j).

By follow-up letter dated February 7, 1997, Ms. Matthew sought clarification of the Water Company's denial, requesting, in relevant part, that the company confirm that the records that it had declined to produce based on KRS 61.878(1)(i) and (j) were all “preliminary” recommendations and “preliminary” memoranda containing opinions, policies or recommendations, as is provided by the plain language of that statute.

In her letter of appeal, dated February 18, 1997, Ms. Matthew states that, as of that date, the Water Company had not responded to her follow-up letter of February 7, 1997. She argues that the agency failed to comply with KRS 61.880(1) by denying her open records request and refusing “to 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.”

On February 21, 1997, we sent a “Notification of Receipt of Open Records Appeal” to the Louisville Water Company, and enclosed a copy of Ms. Matthew's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Joseph B. Helm, Esq., counsel for the Water Company, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Helm stated that Ms. Matthew's request related to internal bidding information directed toward the final action taken by the Louisville Water Company on a project bid. He further stated that the Water Company did not respond to Ms. Matthew's request for an explanation of how KRS 61.878(1)(i) and (j) applied to the records withheld because it believed the initial response was self-explanatory, in light of the situation in point.

In responding to Mr. Helm's letter of February 27th, Ms. Matthew, regarding her clarification request, argued:

At minimum, the Louisville Water Company must state whether the

“preliminary” documents which are being withheld are “intended to give notice of final action of a public agency” (see KRS 61.878(1)(i)) and whether they contain “opinions . . . expressed or policies formulated or recommended” (see KRS 61.878(1)(j)). This is the explanation to which E&H Integrated Systems, Inc. is clearly entitled under KRS 61.880. The Water Company's refusal to provide this information, therefore, violates Kentucky law.

In a March 6, 1997 letter to this office, Ms. Matthew requested this office to conduct an in camera inspection of the records withheld by the Water Company in order to the determine whether the exemptions claimed properly apply to the records withheld.

We are asked to review the Water Company's denial of the requested records. For the reasons which follow, we conclude that the Water Company, by not providing a sufficient description of the records withheld, failed to sustain its burden of establishing that all the records fall within a class of records exempt from disclosure under KRS 61.878(1)(i) and (j).

KRS 61.880(1) provides, in part, 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,” (emphasis added). Mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency. 97-ORD-41.

Regarding the requisite burden of proof under the Open Records Act, this office , in 95-ORD-61, stated:

Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests], it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .

(Emphasis in original.) The Water Company's initial denial of the records at issue on the grounds that they are “internal documents” exempt from disclosure under KRS 61.878(1)(i) and (j) was insufficient to meet its requisite burden of proof under the Act. This nondescript denial does not identify the records withheld with enough detail to demonstrate that the documents withheld fall within those types of records exempt under the cited exceptions. In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals recently observed:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [W]e cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act — much less that it amount[s] to substantial compliance.

Edmonson v Alig, Ky. App., 926 S.W.2d 856, 858 (1996).

In his response to the letter of appeal submitted to this office, Mr. Helm indicated that because the request related to internal bidding information directed toward final action taken by the Water Company on a bidding project, the initial response was self-explanatory. Mr. Helm described the general nature of the withheld documents as “preliminary bidding memoranda and notes of staff leading up to the staff's final evaluations and recommendations to the Board of Water Works which evaluations and recommendations were fully disclosed to Ms. Matthew.”

While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that the Water Company is obligated to provide a sufficient description of the documents or groups of documents withheld to support its determination that the documents fall within the parameters of the cited exceptions. Thus, we do not suggest that the Water Company's reliance on KRS 61.878(1)(i) and (j) was completely misplaced, only that it failed to provide sufficiently particular and detailed information to justify a blanket denial of all the records requested in numerical paragraph number 2 of Ms. Matthew's request, under KRS 61.878(1)(i) and (j).

We note, with reference to bidding documents, this office, in OAG 92-32, held that a public agency improperly denied a request for documents pertaining to a contract for the installation of a telecommunication system, stating:

This Office has repeatedly recognized that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. OAG 82-169; OAG 92-14. With specific reference to bidding documents, we have held that such records must be made available after the bids have been opened and a vendor selected. OAG 84-224; OAG 89-31. Any documents in the possession of the fiscal court or telecommunications subcommittee which fall within the parameters of Mr. Bunger's request must therefore be released. However, any documents containing the committee's recommendations to the state CSEPP [Chemical Stockpile Emergency Preparedness Program] may be withheld, pursuant to KRS 61.878(1)(h) [now codified as KRS 61.878(1)(i)], unless and until they are incorporated into final agency action.

As a general rule, documentary material retained by a public agency, the bid invitation, correspondence pertaining to bids, and the bids themselves are public records subject to the Open Records Act. Unless exempted by the provisions of KRS 61.878, these records are open to public inspection. 92-ORD-1134.

Accordingly, the Water Company should respond to Ms. Matthew's request by either releasing records which satisfy her request or, if any records are withheld under KRS 61.878(1)(i) and (j) or other exception, by providing a sufficient description of the records or groups of records to establish that they are properly exempt from disclosure under the Open Records Act. Since the foregoing is dispositive of this appeal, we conclude it is unnecessary for this office to conduct an in camera inspection of the records withheld.

A party aggrieved by this decision may appeal it 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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

#206

Distributed to:

Dayna Bowen Matthew

Greenebaum Doll & McDonald

3300 National City Tower

101 South Fifth Street

Louisville KY 40202-3197

Joseph B. Helm

Brown, Todd & Heyburn

3200 Providian Center

Louisville KY 40202-3363