Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Environmental and Public Protection Cabinet, Department of Labor violated the Kentucky Open Records Act in partially denying the request of Louise M. Roselle for "any and all records (including photographs)" in the custody of the Department "relative to the investigation of the chemical spill on October 11, 2004 at the Dupont Chemical Plant located in Greenup, Kentucky." As evidenced by prior decisions of this office, the Department properly relied upon KRS 61.878(1)(i) and (j), and KRS 338.101(1)(a), respectively, in withholding the preliminary work notes and correspondence with private individuals as well as those records identifying employees contacted and interview statements. In accordance with 04-ORD-175 and the authorities upon which that decision is premised, this office finds that the Department has not adduced sufficient evidence to support invocation of KRS 61.878(1)(c)1. relative to pictures and information withheld insofar as the Department admittedly has not offered any specific proof regarding the unfair commercial advantage to the company that would result from disclosure; however, those records appear to qualify for protection under KRS 338.171 based on the limited evidence of record.
By letter directed to OSHA, Commonwealth of Kentucky, on April 30, 2007, Ms. Roselle submitted the aforementioned request. In a timely written response, Leslie E. Renkey, General Counsel, responded on behalf of the Department, advising that "non-exempt information from the files" was enclosed. Parroting the language of KRS 61.878(1)(i) and (j), Mr. Renkey explained that preliminary documents, including work notes, were being withheld. 1 "Also, any information identifying employees contacted and/or interview statements has [sic] been removed pursuant to KRS 338.101(1)(a)." In addition, "[p]ictures and information involving the company's procedures for processing materials have been removed as they are considered 'Trade Secrets' pursuant to KRS 61.878(1)(c)1, which includes records confidentially disclosed to an agency generally recognized as confidential or proprietary. " In a letter dated May 30, 2007, Ms. Roselle initiated this appeal challenging the Department's refusal "to release the entire investigative file."
Upon receiving notification of Ms. Roselle's appeal from this office, Mr. Renkey supplemented his response on behalf of the Department. According to Mr. Renkey, the Department released "586 pages of the OSH inspection file requested by Ms. Roselle, withholding the pages containing names and addresses of employees who had been contacted by the investigator and the preliminary worknotes [sic] and preliminary memoranda in which opinions were expressed or policies formulated." Likewise, the Department withheld "pictures and documents involving Dupont's procedures for processing materials." As further argued by Mr. Renkey, the withholding of the names and addresses of employees contacted and preliminary work notes is authorized by KRS 338.101(1)(a) and 61.878(1)(i) and (j), respectively, "and is in accordance with the Department's long standing [sic] practice." Consequently, the Department requests "that this withholding be upheld by the Attorney General under well settled [sic] precedents. See 06-ORD-224 and 03-ORD-199." According to Mr. Renkey:
The withholding of the records involving Dupont's procedures for processing materials is authorized by KRS 61.878(1)(c)1. The Department's withholding is also authorized by KRS 61.878(1)(l), since KRS 3[3]8.171 provides "all information obtained. . . . [i]n connection with any inspection under this chapter which might reveal a trade secret shall be considered confidential except that such information may be disclosed to those persons concerned with carrying out this chapter or when relevant in any proceedings under this chapter. . . ."
Regarding the KRS 61.878(1)(c)1 exemption, it appears the records were required to be disclosed to the Department during an OSH inspection. (See Exhibit 1 - end of first full paragraph). The records relating to a company's industrial materials process would generally be recognized as confidential or proprietary and were so marked in the inspection. (See Exhibit 2). The Department has no specific information regarding the competitive harm Dupont might suffer. However, it is assumed that disclosure of a company's materials process to competitors would result in commercial advantage to competitors. Competitors would have the benefit of reviewing and instituting the process without cost. The Department is requesting competitive harm information from Dupont and will forward it upon receipt.
That being said, Mr. Renkey asserts for the first time that KRS 338.171 "requires that the records be obtained in connection with an inspection conducted under KRS Chapter 338, that they be considered confidential, and that the disclosure would not be to persons involved in KRS Chapter 338 proceedings." 2 In his view, all three requirements "for this authorized holding are clearly met." To summarize, the records "were obtained during an OSH inspection, they were considered confidential and are not being requested for an OSH proceeding." Accordingly, the withholding of these records is authorized "even without a finding of competitive harm under KRS 61.878(1)(c)1." 3 Before addressing the issue of whether the Department properly denied access to pictures and information concerning "the company's procedures for processing materials," this office must determine whether the Department's reliance on KRS 61.878(1)(i) , (j), and KRS 338.101(1)(a) is consistent with governing authorities.
With regard to application of KRS 61.878(1)(i) and (j) in this context, 05-ORD-168, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented; the analysis relative to KRS 338.101(1)(a) is equally controlling. Both work notes generated by an occupational safety and health compliance officer in the course of inspecting/investigating a work site, which contain preliminary handwritten drafts of possible citations, along with the observations and opinions of the compliance officer, and correspondence with private individuals which is not intended to give notice of final action, may properly be withheld in accordance with KRS 61.878(1)(i). Id., p. 3. In addition, work papers and interoffice memoranda containing opinions and recommendations relative to the investigation are exempt from public inspection pursuant to KRS 61.878(1)(j). Id.
Equally well-settled is the principle that employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) that are included among those records in the investigative file are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 4 Id. In OAG 84-345, this office construed the phrase "question privately," as used in KRS 338.101(1)(a), to render any statement so acquired confidential and therefore exempt from mandatory disclosure. Id., p. 4. Because the records and information withheld, namely, preliminary work notes, correspondence with private individuals, preliminary recommendations and memoranda, and the names and addresses of employees interviewed, fall squarely within the parameters of the cited statutory exceptions, the Attorney General hereby affirms the denial of Ms. Roselle's request as to any such records in accordance with prior decisions of this office such as 05-ORD-168. In light of this determination, the question becomes whether the Department is permitted to withhold those pictures and information characterized by the Department as "trade secrets" on the basis of KRS 61.878(1)(c)1.
More specifically, KRS 61.878(1)(c)1. excludes from application of the Open Records Act:
. . . records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records[.]
Both the courts and this office have been asked to interpret KRS 61.878(1)(c)1. in various contexts. To successfully invoke this exception, 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.
03-ORD-064, p. 5; 02-ORD-125; 99-ORD-88. As consistently recognized by this office:
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.
99-ORD-88, p. 5, citing 96-ORD-221, p. 2. When determining whether a public agency such as the Department has met its burden of proof relative to KRS 61.878(1)(c)1., our analysis is necessarily guided by this fundamental principle.
In 04-ORD-175, the Attorney General engaged in a lengthy analysis of this issue, concluding that the Department had not adduced sufficient proof to support a denial based on KRS 61.878(1)(c) 1; the denial which prompted this appeal mirrors the supplemental response issued by the Department in that case. Although the Department elaborates upon the assertion that pictures and information "involving the company's procedures for processing materials have been removed as they are considered 'Trade Secrets'" on appeal to a limited extent, noting that such records "would generally be recognized as confidential or proprietary and were so marked," the Department concedes that "specific information regarding the competitive harm Dupont might suffer" is lacking and then assumes that such a disclosure "would result in commercial advantage to competitors. " Noticeably absent from the record, as in 04-ORD-175, is any documentation to substantiate this assumption. 5
In our view, the reasoning of 04-ORD-175 is controlling here; a copy of that decision is attached hereto and incorporated by reference. Compare 06-ORD-172 (finding that evidence of record, including a copy of the letter sent by the company to the Department requesting that all information released to OSHA remain confidential and explaining how disclosure would permit an unfair commercial advantage to competitors, justified invocation of KRS 61.878(1)(c)1.). While the Department belatedly argues that "it appears the records were required to be disclosed to the Department during an OSH inspection, " as evidenced by the attached exhibit, and establishes that such information and records concerning the inner workings of a company are generally recognized as confidential or proprietary, albeit minimally, the Department has failed to sufficiently demonstrate the unfair commercial advantage that would result from disclosure as required to successfully invoke KRS 61.878(1)(c)1. In so holding, this office does not imply that the Department cannot build a case under KRS 61.878(1)(c) 1. for withholding some or all of the records in dispute, only that the Department has not done so yet. Accordingly, the remaining question is whether KRS 338.171 authorizes the Department to withhold such records.
Although neither party has cited nor has independent research revealed any binding authority which is directly on point, 6 the mandatory language of KRS 338.171 speaks for itself when viewed in context. Among those records expressly removed from application of the Open Records Act are:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 61.878(1)(l). Resolution of the remaining question presented turns on KRS 338.171, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Pursuant to KRS 338.171:
All information obtained by the executive director in connection with any inspection or proceeding under this chapter which might reveal a trade secret shall be considered confidential except that such information may be disclosed to those persons concerned with carrying out this chapter or when relevant in any proceedings under this chapter. In any such proceedings, the executive director, review commission or courts shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Guided by these principles and the legislative statement of policy codified at KRS 61.871, mandating that "exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," this office finds the Department's application of KRS 338.171 reasonable.
According to Mr. Renkey, the records "were obtained during an OSH Inspection, they were considered confidential and are not being requested for an OSH proceeding." 7 A "trade secret" is defined as: "A secret formula, method or device that gives one an advantage over competitors. " The American Heritage College Dictionary, 1457 (4th ed. 2002). Disclosure of records "involving the company's procedures for processing materials" not only "might" 8 reveal a trade secret, the lesser standard expressly adopted by the General Assembly, it necessarily would assuming that the "pictures and information" are properly characterized as "trade secrets. " Because the record supports rather than refutes the Department's contention that all three requirements are satisfied, the Attorney General must conclude that pictures and information concerning the procedures employed by Dupont for processing materials qualify for protection under KRS 338.171. In the absence of evidence to the contrary, this office has no basis for concluding otherwise given the clearly expressed legislative intent.
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 A public agency must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
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. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from 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. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.In short, the initial response of the Department was procedurally deficient.
2 Although the Department ultimately complied with KRS 61.880(1), a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. In responding to future requests, the Department should be mindful of this principle.
3 Enclosed with Mr. Renkey's supplemental response is a copy of a document entitled "CSHO Observations," identified as Exhibit 1, which contains a summary of the "Nature and Scope of Inspection" as well as the "Opening Conference." Also included is a document (presumably a cover page) identified as Exhibit 2 which reads: "Confidential Photos and Documents."
4 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
5 Although the Department apparently requested "competitive harm information" from Dupont and intended to forward same, this office did not receive any such information and our decision is based upon the written record per KRS 61.880(2)(a).
6 In 06-ORD-172, the Department invoked this provision belatedly in responding to a request for additional information (authorized by KRS 61.880(2)(c)) from Assistant Attorney General James M. Ringo; however, this office left for another day the question of whether records like those in dispute "also qualify for exemption under KRS 338.171." Id., p. 9.
7 Although the relevant question is not whether the information was deemed confidential but whether disclosure of the information "might reveal a trade secret, " which, in turn, determines whether the information "shall be considered confidential, " the Department characterized the pictures and information as "'Trade Secrets'" generally recognized as confidential or proprietary in responding to Ms. Roselle's request.
8 To clarify, "might" is defined as: "Used to indicate a possibility or probability that is weaker than may[.]" The American Heritage College Dictionary 880 (4th ed. 2002). In other words, the General Assembly intended to provide the broadest protection to any information the disclosure of which could even possibly reveal a trade secret.