Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet violated the Open Records Act in partially denying a request submitted on March 26, 2010, by Beth McConkey, an assistant to Christopher H. Morris in the law firm of Hargadon, Lenihan & Herrington. We find that the Cabinet's original response to Ms. McConkey's request was deficient and that its supplemental response only partially corrected these deficiencies.
The records to which Ms. McConkey requested access consisted of:
. all documents filed after January 29, 2009, that related to an April 27, 2009, incident involving the firm's client, David Jacobs, that occurred at the Louisville Arena site; and
. all pleadings filed/related to M.A. Mortenson Company and/or Mathis & Sons.
The Cabinet partially denied Ms. McConkey's request on March 29, 2010, advising her as follows:
Correspondence with private individuals are [sic] exempted from release pursuant to KRS 61.878(1)(i) and (j) to-wit: correspondence with private individuals; and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Shortly thereafter, Mr. Morris initiated this appeal asserting that because it did not "explicitly identify[] which documents are responsive to the request, but exempted, the Cabinet has not met its burden of proof. " With reference to the arguments supporting denial and advanced by the Cabinet, Mr. Morris countered:
We are not requesting names of any parties that provided statements or any employees that provided statements in the process; rather, we are interested in the documents M.A. Mortenson Company and Mathis & Sons, Inc., have submitted in response or in support of their respective positions in Administrative Action 09-KOSH-0237. Further, if the parties have discussed any settlement matters, taken statements on the record or otherwise conducted any litigation in the above matter, that information is also responsive to the Open Records Request.
In supplemental correspondence directed to this office, Labor Cabinet staff attorney David N. Shattuck advised us that "the only documents withheld . . . . fall into one of two categories, both of which are exempt by law: (1) the identity of employees interviewed, and (2) work notes and interoffice memoranda containing opinions relative to the investigation are exempt pursuant to KRS 61.878(1)(i) and (j)." Responding to Mr. Morris's argument that because the Cabinet did not expressly identify the responsive documents withheld, it failed to meet its burden of proof, Mr. Shattuck expressed the view that nothing in "the Act so requires." In any event, he concluded, his supplemental response "identified the exempt documents responsive to the request." We disagree.
To begin, the Cabinet's original response violated KRS 61.880(1) insofar as it parroted the language of the cited exceptions instead of briefly explaining how the exceptions apply to the records withheld. As Kentucky's courts have noted in construing KRS 61.880(1):
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act . . . .
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The Cabinet's original response was perfunctory at best. Although we agree with the Cabinet that our Open Records Act has never required "an itemized index correlating each document withheld with a specific exception, such as that required [under federal law as explicated] in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) cert. denied 415 U.S. 977 (1974)," Kentucky's public agencies are "obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable." 97-ORD-97, p. 4, cited with approval in 08-ORD-095.
In its supplemental response, the Cabinet states that the only documents withheld consist of "work notes and interoffice memoranda containing opinions relative to the investigation" protected from disclosure by KRS 61.878(1)(i) and (j). While this response is marginally adequate, and finds legal support in the open records decisions cited, it mirrors the Cabinet's standard response to other requests for records relating to inspections of work places by compliance officers and does not fully address Ms. McConkey's request. Ms. McConkey did not limit her request to that portion of the Safety and Health Inspection Case File, Series 01594 of the Labor Cabinet's Records Retention Schedule (enclosed), leading to the issuance of citations, but expanded her request to include all documentation filed by or related to M.A. Mortenson Company and Mathis and Sons. Inasmuch as at least one of these companies, M.A. Mortenson, has contested the citation, 1 presumably to the Occupational Safety and Health Review Commission, the Cabinet must maintain documentation/ pleadings relating to this contest. Unless the Cabinet has already disclosed these "pleadings" to Ms. McConkey, along with the nonexempt portions of the inspection case file, it remains the Cabinet's obligation to make full disclosure of all nonexempt records requested. Contrary to the Cabinet's belief, if the decision is made to withhold any responsive "pleadings," it must generally describe those records, cite the exception authorizing nondisclosure, and briefly explain how the exception applies to the records withheld.
In so doing, the Cabinet should bear in mind:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on 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, p. 10; cited with approval in 08-ORD-095. The Cabinet must examine each request, and the records responsive thereto, independently and with an eye to insuring the broadest possible public access.
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.
Christopher H. MorrisApril L. AbshireDavid N. Shattuck
Footnotes
Footnotes
1 http://www.what11.com/news/local/Former-downtown-arena-worker-injured-i….
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