Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Transportation Cabinet's denial of Paul Harris's open records request to inspect:
All documents, including correspondence, plans or any other work product, done by WMB of Lexington, Ky., relating to the proposed Highland Pike Extension. I also request all correspondence from the KY Transportation Cabinet to WMB relating to this matter.
Responding on behalf of the Cabinet, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, citing KRS 61.878(1)(i) and (j), denied Mr. Harris's request, stating:
Please be advised that we will be unable to provide the requested information at this time. According to our District Six Office which is located in Covington, Kentucky, and our State Highway Engineer's Office located in Frankfort, Kentucky, this project is in the early stages of design. Therefore, all information is considered preliminary working documents.
Mr. Harris, in his letter of appeal, asks this office to review the Cabinet's denial of his request to inspect and receive copies of all work product done by WMB Engineering Company as it relates to the "proposed construction of a connector road to run between KY 17 and KY 16 in Kenton County."
After receipt of Mr. Harris's letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Transportation Cabinet and enclosed a copy of Mr. Harris's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, E. Jeffrey Mosley, Executive Director, Office of General Counsel, with the Cabinet, provided this office with a response to the issues raised in the appeal. In the response, Mr. Mosley, also citing KRS 61.878(1)(i) and (j), stated "the request was denied and should be upheld accordingly because this project is in the early stages of design." He amplified the Cabinet's initial response by citing KRS 61.878(1)(f), explaining its application as follows:
It excludes from inspection "the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to the acquisition of property." Ultimately, property will have to be obtained for this project if pursued. Clearly, an advantage could be obtained by members of the public if the Open Records Request was granted.
Pursuant to KRS 61.880(2)(b)1., this office requested additional documentation from the Cabinet to substantiate its position that the requested records fell within the various categories of records which are exempt under the cited exceptions.
By letter dated March 13, 1998, J. Todd Shipp, Assistant General Counsel, provided this office with additional information on behalf of the Cabinet. In his letter, Mr. Shipp stated that Mr. Harris had requested information on a project identified in the Kentucky Transportation Cabinet's Six-Year Highway Plan as Item No. 6-350.00 and described as "Construct Connector Road from KY 17 at Highland Pike to KY 16 at Grand Avenue." In describing the project and WMB, Inc.'s contract, Mr. Harris explained:
Funds for the design phase were provided for in State Fiscal Year 1997. The services of a consultant were solicited because in-house staff was not available to undertake work on the project. In fact, this project was coupled with two other projects in Northern Kentucky and advertised in July of 1996. The firm of WMB, Inc. of Lexington was selected and contracts were negotiated on each of the three projects.
Overall design of this project was expected to cost $ 800,000. However, since there was concern the scoping study did not define the project in sufficient detail, our contract with WMB was for the evaluation of four alternatives through preliminary design. The contract also included provision for a public meeting to solicit comments and input on the project. The agreement was for $ 79,923. Notice to proceed was granted on April 10, 1997. Preliminary information on these alternatives was submitted to our District Highway Office in Covington for review. Work under the contract has not progressed beyond that point. The next step would be a preliminary line and grade inspection, followed by a public meeting.
Projects such as this one typically involve consideration of several alternatives. Information is developed by the designer (consultant or in-house) to define advantages and disadvantages of each alternative, possibly indicating the one that provides the most cost effective, engineering solution. This analysis is then transmitted to the District Highway Office for review by various disciplines within the Department to ensure that all critical issues have been identified and addressed. A Department review is then scheduled where these alternatives are discussed. Additional study alternatives may be identified as a result of this meeting. Once there is a consensus within the Department on the adequacy of work, a public meeting would be scheduled to allow for public review and comment.
We are asked to determine whether the Transportation Cabinet properly denied Mr. Harris's request to inspect and copy all work product done by WMB Engineering Company as it relates to the "proposed construction of a connector road to run between KY 17 and KY 16 in Kenton County." For the reasons which follow, we conclude that KRS 61.878(1)(i) and (j) authorize the nondisclosure of the requested records. These exceptions to public inspection provide:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has consistently recognized that reports and analysis prepared by outside agencies, as well as private organizations, may properly be withheld pursuant to KRS 61.878(1)(i) and (j). In OAG 82-450, we held that a "Development Potential Analysis" prepared for Jefferson County by the Real Estate Research Corporation was exempt under what is now KRS 61.878(1)(j). At page 2 of that opinion, we held:
This particular document is almost entirely opinion and recommendations. While it is probably a final report of the corporation employed by Jefferson County to analyze the potential of the Ormsby Village property, it is preliminary in that the county, if it chose to do so, could have other analyses made for its consideration.
Similarly, in OAG 84-337, we held that a completed report of SRI International of Menlo Park, California, on plans for future economic development in Louisville was excluded from public inspection because it contained opinion and recommendations which the public agency could accept or disregard in taking final action. In OAG 85-96, we reached the same conclusion, holding that a feasibility report on the construction of a high-rise office building prepared by Coldwell Realty under a contract with the City of Louisville could be withheld pursuant to KRS 61.878(1)(j) since it was preliminary in nature, "setting forth opinions and recommendations for review and consideration by the city."
As these opinions demonstrate, KRS 61.878(1)(i) and (j) have been interpreted to authorize the nondisclosure of feasibility reports and analysis done by outside agencies prepared for and preliminary to final agency action.
In the instant case, Mr. Shipp indicated in his response that, pursuant to contract, WBM was to prepare an evaluation of four alternatives through preliminary design. The company submitted preliminary information to the District Office in Covington for review and work under the contract had not progressed beyond that point. Mr. Shipp indicated that typically once a company's analysis is submitted for review it is sent around to various disciplines within the Department to ensure critical issues have been addressed and if additional study alternatives have been identified. Thus, the information provided by the company could be subject to revision and further discussion.
Mr. Shipp noted that completed studies are routinely made available to the public. However, the new work had not been sufficiently developed and completed for public review and comment. Accordingly, it is the decision of this office that the Cabinet properly withheld disclosure of WBM's work product under KRS 61.878(1)(i) and (j).
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.