Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Fayette Urban County Government violated the Open Records Act in partially denying William W. Welsh's request to inspect and copy:
all records, plans and other documents, relating to and as a part of the file of the construction of the new facility located at 5921 Athens Boonesboro Road, Lexington, Fayette County, Kentucky[.]
For the reasons that follow, we find that LFUCG's failure to respond to Mr. Welsh's request in writing, and within three business days, constituted a procedural violation of the Act, and that its reliance on KRS 61.878(1)(c)1. and 61.878(1)(c)2.d. as the legal basis for partially denying his request was misplaced.
On April 5, 1999, Mr. Welsh submitted his open records request to William D. Doolin, director of LFUCG's Division of Building Inspection. Shortly thereafter, he received a telephone call from Glenda Humphrey George, corporate counsel for LFUCG, advising him that the records identified in his request were available for inspection, and suggesting that he contact Mr. Doolin to schedule an appointment to inspect the records. Acting on her advice, Mr. Welsh scheduled an appointment for April 12, 1999. When he arrived at the offices of the Division of Building Inspection on April 12, Mr. Welsh was permitted to inspect the application file, but denied access to the building plans. On April 23, Mr. Welsh initiated this open records appeal, questioning whether LFUCG discharged its duties under the Open Records Act, and whether it properly withheld the building plans.
In a response to this office's notification of receipt of Mr. Welsh's open records appeal, Ms. George explained LFUCG's failure to comply with the procedural requirements of the Act:
Instead of contacting Mr. Welsh by phone and telling Mr. Welsh to contact Mr. Doolin to schedule an appointment to inspect the documents, I should have sent Mr. Welsh a letter explaining that not all of the documents he requested would be made available to him. It is the Government's position that building plans are exempt from public inspection pursuant to KRS 61.878(1)(c)(1), KRS 61.878(1)(c)(2)(d) [sic]. I explained to Mr. Welsh that a mistake had been made and Mr. Welsh was told that he would receive a letter explaining the mistake and also explaining why the building plans were exempt from public inspection. Mr. Welsh filed this appeal before I had an opportunity to explain the situation to him in writing.
With respect to the decision to withhold the building plans, Ms. George elaborated on LFUCG's position:
The Division of Building Inspection is the division of the Government that performs residential and commercial building inspections to ensure that all buildings comply with the building code . . . . Prior to the issuance of a building permit, a set of building plans must be submitted to the Division of Building Inspection for approval. Pursuant to Section 107.5 of the Kentucky Building Code, building plans/construction documents should be "drawn to scale with sufficient clarity and detail dimensions to show the nature and character of the work to be performed . . . ."
As stated above, it is the Government's position that building plans are exempt from public inspection pursuant to KRS 61.878(1)(c)(1) and KRS 61.878(1)(c)(2)(d) [sic]. KRS 61.878(1)(c)(1) exempts from public inspection:
KRS 61.878(1)(c)(2)(d) [sic] exempts from public inspection:
KRS 61.878(1)(c)(1) [sic] is designed to protect the work product of architects. With respect to architectural drawings, the American Institute of Architects has included a standard provision in its agreements that architects retain copyright and common law and statutory rights to their work. The standard practice with respect to architectural drawings is that the drawings are the property of the architect. Release of the building plans would permit an unfair competitive advantage to the architect by allowing competitors to have access to the plans. At this time, the Government does not know whether the plans that are the subject of this appeal were submitted by an architect. The plans have been sent to a company in Nicholasville, KY to be copied onto a CD-ROM. Even if the plans in question were submitted by a builder rather than an architect, release of the building plans would permit an unfair competitive advantage to the builder by allowing competitors to have access to the plans.
In addition, building plans are also exempt from public inspection pursuant to KRS 61.878(1)(c)(2)(d) [sic]. This section is designed to protect the owner or occupant of the building. In most situation, the plans submitted to the Division of Building Inspection are detailed. Release of these plans raise issues of safety and security for the owner or occupant of the building. If building plans are open for public inspection, individuals with criminal intent would be able to obtain building plans and know the exact layout of a building if they wanted to burglarize it. Releasing the plans could place the owner or occupant in great danger or the owner or occupant could incur severe property damage or loss.
We find neither of these arguments persuasive.
We will not belabor the issue of LFUCG's procedural noncompliance with the Open Records Act. Ms. George acknowledges her error in failing to respond in writing, and within three business days, per KRS 61.880(1), to Mr. Welsh's request, and in failing to cite the exception authorizing the partial denial of that request. We are confident that these procedural irregularities will not recur.
Having said this, we nevertheless conclude the LFUCG has not articulated a legally supportable basis for denying Mr. Welsh's request for the building plans which accompanied the application for a building permit for the new facility located at 5921 Athens Boonesboro Road. In our view, neither of the cited exceptions authorize nondisclosure of the plans.
In construing KRS 61.878(1)(c)1., the Attorney General has stated that in order to qualify for exclusion under this exception the disputed records must satisfy a three part test. The records must be:
1) confidentially disclosed to the agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.
By its express terms, this exemption is only applicable where disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records , namely the applicant for the building permit, and not the architect whose building plans accompany the application. The exemption's protection simply does not extend to the records of an architect employed by the applicant, or acting for the applicant in an agency capacity. Arguably, the building plans satisfy the first and second parts of the three part test, 1 but disclosure of the plans will not, in our view, permit an unfair commercial advantage to competitors of the entity/ applicant that disclosed them. This is true regardless of who submits the application - the applicant himself, or the builder or architect acting on behalf of the applicant. As we have noted, on more that one occasion:
The General Assembly has declared "that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed . . . ." KRS 61.871. Consistent with this policy, the General Assembly has assigned the burden of proof to the public agency in an open records appeal to this office or the circuit court. KRS 61.880(2)(c); KRS 61.882(3). The Attorney General is thus bound by a rule of strict construction in interpreting the exceptions to the Open Records Act, and all doubts must be resolved in favor of disclosure.
96-ORD-221, p. 2. It is these principles that guide us in resolving this appeal.
It is these same principles that lead us to conclude that LFUCG's reliance on KRS 61.878(1)(c)2.d. was also misplaced. To successfully raise this exemption, a public agency must establish that the records:
1) are confidentially disclosed to the agency or required by the agency to be disclosed to it;
2) are generally recognized as confidential or proprietary; and
3) are compiled and maintained for the grant or review of a license to do business.
Assuming, again for the sake of argument, that the building plans satisfy the first and second requirements of KRS 61.878(1)(c)2.d., 2 it cannot be persuasively argued that they were compiled or maintained for the grant or review of a license to do business. Compare 95-ORD-107 (holding that applications submitted by charitable organizations to the Kentucky Justice Cabinet to obtain licenses to operate bingo games satisfy the third requirement of KRS 61.878(1)(c)2.d.)
We reject LFUCG's argument that KRS 61.878(1)(c)2.d. "is designed to protect the owner or occupant of the building" since release of the plans would enable criminals to obtain building plans and determine the layout of a building in order to burglarize it. This argument "assumes a level of sophistication on the part of [persons with criminal intent] which we question." 93-ORD-44, p. 4. We find no support for the arguments advanced by LFUCG to support its reliance on KRS 61.878(1)(c)2.d.
This is not to say that building plans cannot be withheld under another of the exceptions to the Open Records Act. KRS 61.878(1)(k) authorizes public agencies to withhold "all public records or information the disclosure of which is prohibited by federal law or regulation." Plans, drawings, and designs of an architect are copyrightable under Federal Copyright Law. 17 USC § 101. If the building plans at issue in this appeal have been copyrighted, the protection of the federal law, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), extends to those plans and they may properly be withheld. Otherwise, the plans must be disclosed along with the rest of the application.
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.
Footnotes
Footnotes
1 It is by no means clear under what terms and conditions the application and building plans are submitted. Nor is it clear that all such plans are "generally recognized as confidential or proprietary. " Obviously, proof that the plans had been copyrighted would establish the proprietary interest of the architect in them.
2 This is, again, an unsupported assumption.