Request By:
Ronald L. Sanders, Commissioner
Department of Energy Production
and Utilization
Ironworks Pike
Lexington, Kentucky 40578
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. David Yates has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request under the Open Records Law. KRS 61.870 to 61.884, of a list of energy audits conducted by your department. The requested records are more particularly described as, "A complete listing from the 8 state-supported universities concerning the energy audits conducted on small industrial and commercial businesses."
By letter dated April 15, 1983 you declined to provide the listing of the clients served by the energy audit program stating that there was an implied pledge of confidentiality made to the client. You further stated the following:
"As you may be aware, the purpose of the Energy Management Assistance Program is to provide direct energy conservation counseling to Kentucky small businesses. Potential clients for this program are developed through commercially available lists such as the Dunn and Bradstreet as well as the telephone yellow pages. In many instances, information of a proprietary nature may be discussed during these contacts. It is for this reason that we feel the integrity of the program will be better served by keeping any particular clients' participation confidential."
In a telephone conversation with this office you stated that your clients voluntarily submit to interviews and questionnaires concerning the conduct of their business as it relates to energy.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you have acted in accordance with the Open Records Law in denying the request of Mr. Yates.
The request is for a list and a public agency does not have to prepare a list that does not already exist. OAG 76-375.
Even if a list such as requested is in existence we believe that it can be withheld from public inspection because it is an indication of correspondence with private individuals. KRS 61.878(1)(g) exempts from mandatory public disclosure: "Preliminary drafts, notes, correspondence of private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Since your clients voluntarily submit to interviews and questionnaires about their private business with an understanding of confidentiality, we believe that the information requested falls under the exemption of correspondence with private individuals.
As directed by statute a copy of this opinion is being sent to the requester who has the right to challenge it in court.