Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Environmental and Public Protection Cabinet, Department of Labor violated the Kentucky Open Records Act in partially denying the June 1, 2006, request of Rob Dixon for "reprints of any accident scene photographs that you may have taken and/or acquired from other agencies," relative to the accidental death of Randall Coleman and withholding access to a video and information provided to the Department by Kentucky Steel Center, Inc. For the reasons that follow, we find that insufficient information is presented for this office to resolve the factual dispute as to whether access to the photographs has been provided, but conclude that the Department has sustained its burden of proof to support its invocation of KRS 61.878(1)(c)1. in withholding access to the video and information at issue.
By letter dated June 7, 2006, Margaret Goodlett Miles, Paralegal, on behalf of the Department, responded to Mr. Dixon's request, advising:
This is in response to your request for copies of photographs from the above-referenced occupational safety and health investigative file [Kentucky Steel Center, Inc. Inspection #S0138-010-05/308390434].
The pictures are considered "Trade Secrets" . Pursuant to KRS 61.878(1)(c)1, records confidentially disclosed to an agency generally recognized as confidential or proprietary are exempt from release. The pictures contain information involving the company's procedures for processing materials.
Shortly thereafter, Penny Unkraut Hendy and W. Kash Stiltz, Jr., attorneys for Rene Coleman/Estate of Randall Coleman initiated the instant appeal. In their letter of appeal, they argue that the Department had proffered no explanation why the records requested qualified as a "trade secret" and, thus, improperly denied the request of Mr. Dixon, an investigator hired by them, for the requested photographs, under authority of KRS 61.878(1)(c)1. In addition, they asserted that the photographs had previously been disclosed by the Department, under cover letter from Ms. Miles, as the result of a previous open records request by Rene Coleman, Randall Coleman's widow. (Xeroxed copies of these photocopies were attached to the letter of appeal.) They further argued that photographs taken immediately after and depicting the accident, those in possession of the Cabinet and taken by the Berea Police Department or Madison County EMS are not entitled to any "trade secret" or confidential protection.
After receipt of notification of the appeal, Leslie E. Renkey, General Counsel, Department of Labor, provided this office with a response to the issues raised in the appeal. In his response, he advised:
Mr. Rob Dixon requested reprints of the accident scene photographs taken by the Department of Labor OSH Inspector and photographs taken by the Berea Police Department that may have been provided to the Inspector.
It appears the accident scene photographs requested had previously been provided to Rene Coleman on February 22, 2005 pursuant to an earlier open records request, who then provided them to the attorney for the estate. The Department has no additional photographs and no record of having any photographs taken by the Berea Police Department.
The Department does have a video and other information involving a machine that was labeled "trade secrets" by Kentucky Steel Center, Inc. when the records were provided to the Department. We are enclosing a letter from Kentucky Steel Center, Inc. related to the "trade secrets" justification that disclosure would permit an unfair commercial advantage to competitors. These records were also withheld in the February 22, 2006 response.
The letter from Seiji Motoni, President, Kentucky Steel Center, Inc., dated June 22, 2006, to the Department, states:
This letter is to restate our request that all information released to OSHA regarding the 10/26/04 accident involving Randall Coleman not be released due to the fact that the documents disclose details of equipment being used which is unique and would be a violation of trade secrets.
The equipment shown in our disclosed information manufactured by Sonoda Engineering is the only machine of this type currently being used in the United States. There are some operations of this machine that are unique only to this machine and releasing this information could be damaging to our business.
Your consideration in this matter would be appreciated.
Pursuant to KRS 61.880(2)(c), we ask that the Department provide the following additional information to facilitate our review of the issue on appeal:
1. Please describe in general terms the nature and origin of the pictures withheld from disclosure on June 7, 2006, and the video and information provided by Kentucky Steel Center, Inc., withheld from disclosure by the Department's supplemental response.
2. Please indicate whether the records at issue were confidentially disclosed or required to be disclosed to the Department; provide a brief description of the competitive harm that Kentucky Steel Center, Inc. might suffer as a result of disclosure; and explain how that the records in dispute are generally recognized as confidential or proprietary.
3. Please indicate why the Department elected to rely on KRS 61.878(1)(c)1, rather than KRS 338.171, which deals with the confidentiality of trade secrets obtained in connection with an inspection or proceeding under KRS Chapter 338. As you know, KRS 338.171 is incorporated into the Open Records Act by KRS 61.878(1)(l).
By letter dated July 13, 2006, Mr. Renkey, on behalf of the Department, provided the following response to our request for additional information, stating, in part:
As previously explained, all photographs taken by the Department of Labor inspector appear to have been released to Mrs. Coleman in response to her request in 2005. They are now in the possession of Ms. Hendy and were enclosed with Ms. Hendy's original submission. The Department of Labor has no additional photographs from other agencies.
Addressing our question no. 1, Mr. Renkey advised:
No pictures not already in the possession of Ms. Hendy were withheld from disclosure on June 7, 2006. The video withheld from disclosure was a "surveillance" video provided by Kentucky Steel Center, Inc., (KSC) showing its line in operation on the day of the incident, including the machine referred to in Mr. Motoni's statement. The information withheld contained specifications regarding the machine.
In response to our question no 2, Mr. Renkey advised:
The video and other information were confidentially disclosed by KSC or required to be disclosed to the Department by KSC. The Department has no further information other than the statement already furnished regarding competitive harm KSC might suffer. Any additional information would have to be furnished by KSC. Internal surveillance videos of work operations are intended solely for company safety/security review and improvement of company work operations, clearly recognized as confidential or proprietary to the company.
Finally, in response to our inquiry as to the application of KRS 338.171, which deals with the confidentiality of trade secrets obtained in connection with an inspection or proceeding under KRS Chapter 338, Mr. Renkey advised:
The Department should also have relied on KRS 338.171, and hereby relies on that additional exemption, since the video and other information was obtained in connection with an inspection conducted under KRS Chapter 338, considered confidential, and the requested disclosure would not be to persons concerned with carrying out KRS Chapter 338 or a proceeding under KRS Chapter 338.
We first address the issue regarding the request for "reprints of any accident scene photographs" that the Department "may have taken and/or acquired from other agencies," such as the Berea Police Department, relative to the accidental death of Randall Coleman. In her letter of appeal, Ms. Hendy indicated that Mr. Dixon had been denied access to these photographs, but they had previously been disclosed, under a February 22, 2006, cover letter from Ms. Miles, to Rene Coleman, Randall Coleman's widow. Ms. Hendy attached, as an exhibit to her letter of appeal, 52 zeroxed copies of these photographs. The Department, in its supplemental response to the letter of appeal, advised that it appeared that the photographs had been provided to Rene Coleman, who then provided them to the attorney for the estate. The Department further advised that it had no additional photographs and had no record of having any records of the Berea Police Department. In response to the Attorney General's request for additional information, the Department indicated that the photographs are now in Ms. Hendy's possession and were enclosed with Ms. Hendy's original submission. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3. Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to these requested photographs. If the photographs were provided after Ms. Hendy initiated her appeal, the issue as to these records would be moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long recognized that when access to public records is denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5. Moreover, the Department, in its supplemental response, advised that it had no additional photographs and no record of photographs taken by the Berea Police Department that may have been provided to the Inspector. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
We next address whether the Department violated the Open Records Act in denying access to the video and information involving a machine that was labeled "trade secrets" by Kentucky Steel Center, Inc., and which were provided to the Department for use in its investigation. For the reasons that follow, we conclude the Department properly denied access to the video and information under authority of KRS 61.878(1)(c)1.
To successfully invoke KRS 61.878(1)(c)1., a public agency must establish that the public records in dispute are:
1) confidentially disclosed to an agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
04-ORD-175, p. 4. The burden of proof relative to invocation of KRS 61.878(1)(c)1. rests with the agency. In other words, the public agency must prove that the records were confidentially disclosed to it by the entity and are generally recognized as confidential or proprietary. In discussing what is required in meeting this burden, this office has stated:
Without going into an exhaustive and highly technical explanation, and thus defeating the purpose for which the exception was invoked, we believe [the Department] could have [clarified whether the appendices were confidentially disclosed or required to be disclosed to it,] offered a brief description of the competitive harm the private entit[y] might suffer as a result of disclosure, and some proof, beyond a bare assertion, that the disputed records are generally recognized as confidential or proprietary. If, for example, [the Department] had made the case that the [appendices] developed by [ATC are] of such a unique and original character that a competitor might misappropriate [them] for its own use, thus depriving the bidder of its proprietary interest in the [appendices], it would, at least arguably, meet its burden of proof.
The Department in its responses advised that KSC's video and information was required to be disclosed to it and was confidentially disclosed to the Department by KSC. The Department explained that the video withheld from disclosure was a surveillance video provided by KSC showing its line in operation on the day of the incident, including the machine referred to in Mr. Motoni's statement and the information withheld contained specifications regarding the machine. The Department further explained that internal surveillance videos of work operations are intended solely for company safety/security review and improvement of company work operations, clearly recognized as confidential or proprietary to the company.
Mr. Motoni's letter, addressed to the Department, requested that all information released to OSHA regarding the 10/26/04 accident involving Randall Coleman not be released due to the fact that the documents disclose details of equipment being used which is unique and would be a violation of trade secrets. He explained that the equipment shown in the disclosed information manufactured by Sonoda Engineering is the only machine of this type currently being used in the United States and there were some operations of that machine that were unique only to that machine and releasing this information could be damaging to their business.
96-ORD-135, p. 4.
Based on these facts, we find that the video and information about the machine was submitted to the Department in confidence and disclosure of the confidential or proprietary information, such as the internal workings of the company relative to how it conducts its safety/security review and improvement of company operations and the manner in which the unique machine was being used and operated was of such a character that disclosure could provide an unfair advantage to competitors by permitting them to ascertain unique and successful operations of the machine and the "inner workings" 1 of the company "without the hurdles systematically associated with acquisition of such information about privately owned organizations." 2 Accordingly, we conclude the Department properly withheld access to the video and information about the machine under authority of KRS 61.878(1)(c)1.
Because the foregoing is dispositive of the appeal, we need not address other bases set forth by the agency in support of its actions relative to the request. We leave for another day the question of whether disclosure of records such as the one at issue here also qualify for exemption from disclosure under KRS 338.171, as the record on appeal is not sufficiently developed to reach that issue.
A party aggrieved by this decision may appeal it by initiating an 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 Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) (holding that financial information submitted by private corporation to the Authority, including financial history, financial statements, and a detailed description of the company's productivity, efficiency, and financial stability, may be withheld pursuant to KRS 61.878(1)(c)(2) since "such information concerning the inner workings of a corporation is generally recognized as confidential or proprietary. ").
2 Marina Management Services v. Cabinet for Tourism, Ky., 906 S.W.2d 318, 319 (1995) (holding that audited financial reports of a privately owned corporation including information on asset values, rental amounts on houseboats, profit margins, net earnings, and capital income, may be withheld pursuant to KRS 61.878(1)(c) since disclosure would unfairly advantage competing operators by permitting them "to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations.