Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in partially denying Todd Ray's written request for the Kentucky Occupational and Safety Health Investigative file relating to Inspection No. 312213465. Consistent with prior decisions, including 05-ORD-168, this office reaffirms the position that KRS 338.101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), authorizes the Cabinet to withhold the identities of the employees interviewed by the compliance officer. As in 04-ORD-175, this office must conclude that the Cabinet has not satisfied its burden of proof relative to KRS 61.878(1)(c)1. insofar as the record on appeal is devoid of any evidence beyond a bare assertion to substantiate that disclosure of the specified Owner's Manual would permit an unfair commercial advantage to competitors of Michelin North America, Inc.
On November 24, 2008, Mr. Ray directed a request "for the Open Records pertaining to my accident," referencing Inspection No. 312213465, to April Abshire, Paralegal Consultant, via e-mail. 1 In a timely written response, Ms. Abshire partially denied Mr. Ray's request, advising him, in relevant part, as follows:
The non-exempt information is enclosed. The preliminary work notes and correspondence with private individuals are exempted from release pursuant to KRS 61.878(1)(i) and (j) to-wit: correspondence with private individuals; and preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Also, any information identifying employees contacted has been removed pursuant to KRS 338.101(1)(a).
By letter dated December 9, 2008, Mr. Ray initiated this appeal challenging the Cabinet's refusal to release "the entire file on my accident that occurred on August 20 2008." (Original Emphasis.)
Upon receiving notification of Mr. Ray's appeal from this office, David N. Shattuck responded on behalf of the Cabinet, attaching copies of the Inspection Report, photographs, and other documents provided to Mr. Ray. According to Mr. Shattuck, "only the identity of the employees interviewed and the 'Anderson manual relative to the Expeller' were withheld as exempt from disclosure. The identity of the employees interviewed is confidential pursuant to KRS 338.101(1)(a) and therefore exempt from disclosure under KRS 61.878(1)(l). See 08-ORD-237." Mr. Shattuck further advises that "Exhibit 3 is the face cover of the Anderson manual which indicates that the employer intended [it] be kept confidential as a trade secret." 2 According to Mr. Shattuck, the Manual was confidentially disclosed to the Cabinet, "and it is generally recognized that owner manuals contain proprietary information which, if disclosed, might permit an unfair commercial advantage to Michelin's competitors. " In his view, "the manual was properly withheld as exempt from disclosure pursuant to KRS 61.878(1)(c) [1.]." 3 Based upon the following, this office finds that the Cabinet's position is partially supported by governing precedents.
With regard to application of KRS 338.101(1)(a), the analysis contained in 05-ORD-168 is equally controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. 4 It is well-settled that employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) , that are included among those records in an investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 5 Pursuant to KRS 338.101(1)(a):
(1) In order to carry out the purposes of this chapter, the commissioner or his authorized representative shall have the authority:
(Emphasis added). 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; accordingly, the identities of employees interviewed by a compliance officer during an investigation are confidential as well. See 07-ORD-166.
Although the exceptions to the Open Records Act have been deemed "convenient shields which public officials may use when they desire to do so [and] not restraints to keep them from opening up any records in their custody," OAG 79-275, p. 3, the decision to release statutorily exempt records and information rests with the agency, and not the Attorney General regardless of how compelling the requester's need for the records may be. It is for the Cabinet to exercise its discretion in deciding whether to release all of the records in a particular investigative file or to withhold portions of the file under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Because the redacted information falls squarely within the parameters of KRS 338.101(1)(a), incorporated by the Open Records Act by operation of KRS 61.878(1)(l), the Cabinet's position is affirmed in this regard consistent with prior decisions of this office, including 05-ORD-168. Given this determination, the remaining question is whether the Cabinet properly withheld the Owner's Manual in dispute 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 (emphasis added); 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 Cabinet 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 Cabinet (then "Department of Labor") had not satisfied its burden of proof relative to KRS 61.878(1)(c)1. More specifically, this office held that an "unsupported allegation such as '[p]ictures and information involving the company's procedures for processing materials have been removed as they are considered 'trade secrets' does not constitute sufficient evidence to establish that the records qualified for exclusion." Id., p. 10. Noticeably absent from the record, as in 04-ORD-175, is any documentation to substantiate the Cabinet's assertion that disclosure of the record(s) (Owner's Manual) would "permit an unfair commercial advantage" to competitors of the company (Michelin). 6
In our view, the reasoning of 04-ORD-175 is controlling here; a copy of that decision is attached hereto and incorporated by reference. See 07-ORD-166 (holding that agency's removal of the company's "procedures for processing materials" as "Trade Secrets" that would "generally be recognized as confidential or proprietary and were so marked" was improper as the agency conceded that "specific information regarding the competitive harm [the company] might suffer" was lacking and then assumed that such a disclosure "would result in commercial advantage to competitors" without elaborating). Compare 06-ORD-172 (finding that evidence of record, including a copy of the letter sent by the company to 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.). Although the Cabinet belatedly argued that the Owner's Manual was "confidentially disclosed" to it, and established that information contained therein is generally recognized as confidential or proprietary, albeit minimally, the Cabinet 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. 07-ORD-166; 04-ORD-175. In so holding, this office does not imply that the Cabinet cannot build a case under KRS 61.878(1)(c)1. for withholding the record in dispute, only that the Cabinet has not done so yet.
This office also recognizes that in some instances the details of the confidential and proprietary nature of documents may not be readily available or recognizable to a public agency. Because the agency is ultimately the party responsible for satisfying its burden of proof in excluding documents from inspection under KRS 61.878(1)(c)1., in those instances where a public agency has been asked to disclose information it believes may be confidential or proprietary in nature, best practice would be for the agency to notify the entity most interested in protecting the confidential nature of the document(s). Just as the circuit court would allow a party to intervene to protect the confidentiality of its documents, the Attorney General would permit argument and input from the non-party to the appeal in those limited cases where a KRS 61.878(1)(c)1. exclusion is being argued.
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 Although KRS 61.872authorizes public agencies to require "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected," which must be "hand delivered, mailed or sent via facsimile," the Cabinet essentially waived this requirement in providing certain records to him without objection; accordingly, further discussion of this procedural issue is unwarranted.
2 The cover page identifies the manual as the "#88 Expeller Press Owner's Manual Shop No. 1151" for Anderson International Corporation, Michelin North America, American Synthetic Rubber Corporation, and contains a stamp indicating that "Restricted Trade Information" is contained therein.
3 Although a disc "containing a video was not mailed to Mr. Ray, a defect which [the Cabinet] cured by mailing him the video yesterday." Mr. Shattuck included a copy of the disc with his response as Exhibit 4.
4 05-ORD-168 also validates the Cabinet's position as to application of KRS 61.878(1)(i) and (j) in this context; however, analysis of this argument is unwarranted as the Cabinet apparently did not ultimately withhold any such documents here.
5 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."
6 Rather than offer specific proof, the Cabinet expresses uncertainty in arguing that such manuals generally contain proprietary information "which, if disclosed, might permit" an unfair commercial advantage to competitors of Michelin. (Emphasis added.)