Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Madison County Fiscal Court and the Madison County Emergency Management Agency failed to meet their statutorily assigned burden of proof in relying on KRS 61.878(1)(c)1. and KRS 61.878(1)(m)1.f. and g. to partially deny Thomas P. Vergamini's requests for records relating to "the planning, funding, and decision to locate and construct a free standing 300 plus foot antenna tower on county owned land that lies immediately adjacent to a partially developed residential subdivision." It is the decision of this office that 00-ORD-188, interpreting KRS 61.878(1)(c)1., and 05-ORD-175, interpreting KRS 61.878(1)(m)1.f., are dispositive of the issues on appeal.
In a joint response to Mr. Vergamini's requests, the Fiscal Court and EMA 1 advised that they would "not provide any records that have a reasonable likelihood of threatening public safety by exposing vulnerability in this emergency communication system: Whether it is in preventing, protecting against, mitigating, or responding to a terrorist incident or disaster . . . ." The agencies maintained that "[t]he design of this system, its infrastructure, control, and operation mechanisms/systems, and physical attributes are not something that falls under the open records request criteria." The agencies agreed to release some 590 copies of responsive records including funding information and environmental ground studies, site locations considered, information associated with lighting and warning sirens, public notices, and an FCC study. The agencies withheld the remaining records, invoking KRS 61.878(1)(c)1. and explaining that "all of the technical data and price breakdowns of the system were marked as 'Proprietary and Confidential' by the vendor, hence requiring their corporate attorney and contract departments [sic] approval prior to release." In addition, they invoked KRS 61.878(1)(m)1.f. and g., asserting that they would "not be providing the engineering, structural, civil, or any other engineering or design or operational information about our new emergency communications system. " This appeal followed.
In 01-ORD-188, and numerous open records decisions issued before and since, this office recognized that in order to qualify for exclusion under KRS 61.878(1)(c)1., public records must be:
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.
Further, we have recognized that "the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency," and that "a bare allegation, without a supporting explanation, is not sufficient under the Open Records Act." 2 Thus, at page 6 of 96-ORD-135, we observed:
Without going into an exhaustive and highly technical explanation, and thus defeating the purpose for which the exception was invoked, we believe that [the agency] could have offered a brief description of the competitive harm the private entities 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.
No such explanation or description of the potential for competitive harm can be located in the record on appeal. The agencies merely assert that the vendors marked the information withheld "confidential and proprietary" following designation as such by the vendors' attorneys and contracts departments. This assertion, standing alone, is not sufficient to satisfy the agencies' burden of proof, and we therefore cannot affirm its reliance on KRS 61.878(1)(c)1. We therefore find the analysis located at pages 9 through 12 of 00-ORD-188 is dispositive of this issue. A copy of 00-ORD-188 is attached hereto and incorporated by reference.
In 05-ORD-175, this office rejected an agency's reliance on KRS 61.878(1)(m) 1.f. to justify nondisclosure of "infrastructure records and the security of critical systems, including information technology. " Although we did not parse the language of the exemption, our analysis proceeded from the assumption that KRS 61.878(1)(m) can only be invoked if the requested record falls within one or more of the eight specifically identified records categories identified in subparagraph a. through h. of KRS 61.878(1)(m), and its disclosure "would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act" as defined in KRS 61.878(1)(m)2.a. through c. At page 4 of 05-ORD-175, we acknowledged that the requested record was "an information technology system as defined in KRS 61.878(1)(m)1.f., and that it could be subjected to a 'terrorist act, ' such as a criminal act intended to [d]isrupt a system identified in subparagraph 1.f.," but concluded that the agency's response "fail[ed] to establish how disclosure of the records in dispute . . .would result in 'a reasonable likelihood of threatening the public safety by exposing a vulnerability [in the system] as required by KRS 61.878(1)(m)." Critical to our determination was the agency's failure to meet its burden of proof in establishing a reasonable likelihood of threatening the public safety, the linchpin upon which the language of the exemption turns.
In the appeal before us, as in 05-ORD-175, we recognize that the requested records consist, in part, of communications infrastructure records per KRS 61.878(1)(m)1.f. and g., and that the infrastructure system to which they relate is vulnerable to disruption per KRS 61.878(2)(m)(b). The agencies broadly assert that they "will not provide any documents that comprise our emergency communications system" and recite the language of the exemption. n3 As above, this statement, standing alone, is not sufficient to satisfy the agencies' burden of proof even if, in the agencies' view, their rationale is evident. The restrictive language found at KRS 61.878(1)(m) 1.a. through h. and KRS 61.878(1)(m)2. requires that disclosure of the disputed records must have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act as defined at, and only as defined at, KRS 61.878(1)(m)2. The inclusion of these distinct and separate requirements imports a legislative resolve that the provision be invoked judiciously and only when all requirements have been met. Consistent with "[g]eneral principles of statutory construction hold[ing] that a court must not be guided by a single sentence of statute but must look to the provisions of the whole statute and its objects and policy," County of Harlan v. Appalachian Regional Healthcare, Inc., Ky. 85 S.W.3d 607, 611 (2002), the statement of legislative intent found at KRS 61.871 declaring that "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the assignment of the burden of proof to public agencies found at KRS 61.880(2)(c), we conclude that the Madison County Fiscal Court and the Madison County Emergency Management Agency failed to meet their burden of proving that there is a reasonable likelihood that disclosure of the records withheld threatens the public safety by exposing a vulnerability that could lead to the disruption of the communications system. Absent further development of the record on appeal by submission of documentation supporting the invocation of KRS 61.878(1)(c)1. as it relates to the competitive harm to the vendor, and KRS 61.878(1)(m)1.f. and g. as it relates to the threat to public safety, we find that 05-ORD-175 is dispositive of this issue. A copy of 05-ORD-175 is attached hereto and incorporated by reference.
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.
Thomas P. VergaminiKent ClarkCarl RichardsMarc Robbins
Footnotes
Footnotes
1 We will not unnecessarily lengthen this decision with an analysis of the propriety of this joint response. We are aware of no statutory prohibition on two county agencies jointly responding to related records requests submitted by the same applicant. In the absence of evidence of an intent to circumvent the requirements of the Act or conceal responsive records, we find no violation of the Act.
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2 KRS 61.880(2)(c) provides, in relevant part, "The burden of proof in sustaining the action shall rest with the agency . . . ."
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