Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Danville violated the Kentucky Open Records Act in denying Clay P. Moore's March 2, 2012, request for "one (1) copy of all the drawings and specifications of the Harding Street Storm Water Project." By letter of the same day, City Clerk Donna Peek confirmed receipt of Mr. Moore's request and indicated that the "City of Danville will contact you when the items you requested are ready to be picked up." Over a month later, on April 4, 2012, Ms. Peek denied Mr. Moore's request "as it falls with[in] KRS 61.878 (exemptions) as the 'homeland security exception' includes records which, if disclosed, have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act. " Ms. Peek then paraphrased several different subsections of KRS 61.878(1)(m)1., upon which the City relied implicitly, emphasizing that included among those records to which that exception specifically applies are "certain infrastructure records, certain maps and drawings of public buildings and any records which may disclose the exact location of hazardous chemicals, radiological or biological materials." (Original emphasis.) The City has made no attempt, either initially or in response to Mr. Moore's appeal, to establish how or why disclosure of these records would result in a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act; accordingly, the City has not satisfied its burden of proof in accordance with KRS 61.880(1) and (2)(c). 1 In so holding, this office does not suggest that the City cannot successfully build a case for withholding "certain" infrastructure records and/or "certain" maps and drawings, by explaining with more specificity how KRS 61.878(1)(m)1. applies here, only that it has not done so thus far. The reasoning of 05-ORD-175 and 09-ORD-100 is controlling on the substantive question presented.
By letter dated June 25, 2012, Mr. Moore initiated this appeal, noting that the City "recently init[i]ated a Storm Water Improvement Project for North Harding Street in the amount of $ 258,164.00." When the Assistant Engineer briefed the Danville City Commission regarding the Project, Mr. Moore advised, "I was in attendance and questioned some of the proposals . . . causing me to request . . . additional information." According to Mr. Moore, his requests "have resulted in denial, undue delay of readily available information, [and] incorrect and incomplete official documents." Mr. Moore cited multiple bases for his belief and that of "several other citizens of Danville" that "mismanagement, lack of accountability of funds, lack of professionalism and knowledge of [ongoing] projects" have occurred "with possible criminal actions and public fraud [ongoing]." Only those concerns directly related to his Open Records request -- namely, the delay between the submission of his request on March 2 and the City's April 4 denial thereof, and the agency's belated reliance on KRS 61.878(1)(m) as the basis for denying him access to "drawing [s] and specification [s] of the Project," can be properly addressed in the context of this appeal. The broader concerns and peripheral issues raised are not justiciable in this forum as the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Rather, KRS 61.880(2)(a) narrowly defines our scope of review in resolving disputes arising under the Open Records Act and our analysis proceeds accordingly.
Upon receiving notification of Mr. Moore's appeal from this office, the City advised that it "provided all information to Mr. Moore as soon as it was available from the Engineering [D]epartment and after reviewing items requested with the City Attorney." Ms. Peek maintained that Mr. Moore's request was "completed and responded to in a timely manner." In her attached letter to Mr. Moore dated July 6, Ms. Peek advised, in relevant part, that she "requested information immediately from staff regarding the items you requested. Also, I prepared a letter in response stating I had requested the documents which you picked up at City Hall on 3/2/2012." After Ms. Peek received the documents "from staff" and had a discussion with the City Attorney "regarding the homeland security exemption KRS 61.878(1)[(m)1.f., mistakenly cited as KRS 61.878(1)(f) belatedly on appeal,]" she "prepared the letter of 4/2/2012," which Mr. Moore "picked up and signed for at City Hall." Ms. Peek then addressed the perceived omissions in the Performance Bond and correctly observed that Mr. Moore's complaint(s) regarding the change orders did not constitute a justiciable issue(s), but instead was "an opinion about the process." In closing, Ms. Peek confirmed that the City has "provided all documents requested with the exception of maps, drawings and specifications of the project" 2 and reaffirmed the agency's reliance on the referenced exception.
Although the City issued a written response to Mr. Moore's March 2 request within three business days per KRS 61.880(1) , its response was otherwise deficient insofar as the agency failed to either provide him with access to all existing responsive documents within that period of time or cite the applicable statutory exception and briefly explain how it applied to any records being withheld. The City did not, in the alternative, expressly invoke KRS 61.872(5) 3 or provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date on which the records would be made available. Rather, its March 2 letter merely advised Mr. Moore that the "City of Danville will contact you when the items you have requested are ready to be picked up." Noticeably absent is any reference to KRS 61.872(5). No explanation of the cause for delay was provided nor was the "earliest date on which the public records [would] be made available for inspection. " Even assuming the records being sought were "in active use, in storage or not otherwise available," the City did not specify which of these permissible reasons for delay applied, if any. In the City's response to Mr. Moore's appeal, it advised, for the first time in writing, that "all information" was provided to Mr. Moore "as soon as it was available from the Engineering [D]epartment and after reviewing items requested with the City Attorney."
Some delay may have been justified in order to retrieve the documents requested from the Engineering Department; however, the record lacks adequate information for this office to determine whether a delay of a full month (March 2-April 4) was justified. 4 In any event, the City violated the Act from a procedural standpoint in failing to either provide Mr. Moore with timely access or properly invoke KRS 61.872(5) if appropriate. This office sees "nothing wrong with the [City's apparent] policy of processing open records requests through its legal department. In our view, this policy ensures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4 (emphasis added); 12-ORD-128. "'The value of information is partly a function of time.'
Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3; 10-ORD-201. Because this office had occasion to remind the City of its procedural obligations under KRS 61.880(1) and 61.872(5) as recently as November 2011, in 11-ORD-196, this office will not unnecessarily lengthen the instant decision by recapitulating the well-established law upon which that decision was based. A copy of 11-ORD-196 is attached hereto and incorporated by reference. The City is encouraged to closely review pages 2-5 in particular to avoid future violations.
"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]," this office has long recognized, "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)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11. The City did not initially reference any of the statutory exceptions codified at KRS 61.878(1)(a)-(n) in responding to Mr. Moore's request but implicitly relied upon KRS 61.878(1)(m) (initially paraphrasing subsections f, g, and h) in ultimately denying his request for a copy of "all the drawings and specifications of the Harding Street Storm Water Project" on April 4. In failing to specify which of the statutory exceptions codified at KRS 61.878 it was relying upon as the basis for denial (or which subsection of KRS 61.878(1)(m) until responding to Mr. Moore's appeal) or provide any explanation of how that exception applied to such records, rather than quoting portions of its language without explanation, the City also committed a substantive violation of the Act.
Resolution of this issue turns on the application of KRS 61.878(1)(m), which removes from application of the Open Records Act:
1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terroristic act and limited to:
In belatedly denying Mr. Moore's request for a "copy of all the drawings and specifications of the Harding Street Storm Water Project," the City referenced "KRS 61.878 (exemptions) as the 'homeland security exception' includes records which, if disclosed, have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigation or responding to a terrorist act. " Paraphrasing the language of KRS 61.878(1)(m)1., the City then explained that records falling into "this category are limited to criticality list[s] resulting from consequence assessments, vulnerability assessments, antiterrorism protective measure[s] and plans, security and response needs assessments, certain infrastructure records, certain maps and drawings of public buildings and any records which may disclose the exact physical location of hazardous chemicals, radiological or biological materials." (Original emphasis.)
This office has recognized that "[s]uccessfully invoking KRS 61.878(1)(m), popularly known as the 'homeland security' exception, requires a public agency to meet a heavy burden. See, e.g., 09-ORD-100; 05-ORD-175." 09-ORD-124, p. 5 (finding the City of Bardstown had not made a "serious effort to meet this burden"). In 05-ORD-175, for example, this office rejected the agency's reliance on KRS 61.878(1)(m)1.f. as the basis for denying access to "infrastructure records and the security of critical systems, including information technology. " Id., p. 2. This office agreed "with that portion of the [Transportation] Cabinet's position that the CICS is 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.' KRS 61.878(1)(m)2.b." Id., p. 4. The Attorney General nevertheless concluded that responses by the Cabinet failed to "establish how disclosure of the records in dispute, i.e., records that reveal the level of access of each person in state government with CICS privileges would result in a 'reasonable likelihood of threatening the public safety by exposing a vulnerability, ' as required by KRS 61.878(1)(m)." Id. Although the City denied access to "infrastructure records, certain maps [seemingly referring to 1.g.] and drawings" here, thereby implicating a different portion of 61.878(1)(m)1.f., the underlying rationale of 05-ORD-175, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. As the Attorney General observed at page 5 of that decision:
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. 04-ORD-171.
05-ORD-175, p. 4. When viewed in light of the fundamental policy codified at KRS 61.871, as well as the mandatory language of KRS 61.880(2)(c) and the holding of 05-ORD-175, the City's denial is deficient. Further support for this conclusion is also found in a more recent decision, 09-ORD-100.
Relying upon the reasoning of 05-ORD-175, this office subsequently found that the Madison County and Madison County Emergency Management Agency failed to satisfy their statutory burden of proof in partially denying a request for public records pertaining 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." 09-ORD-100, p. 1. The agencies had invoked KRS 61.878(1)(m)1.f. and g. in declining to provide "the engineering, structural, civil, or any other engineering or design or operational information about our new emergency communications system." Id., p. 2. Significantly, the Attorney General noted in referring to 05-ORD-175 that "[c]ritical 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." 09-ORD-100, p. 4.
As in 05-ORD-175, this office recognized in 09-ORD-100 that the records in dispute "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)." Id. However, the agencies' broad assertion coupled with recitation of the statutory language was " not, standing alone, . . . sufficient to satisfy the agencies' burden of proof even if, in the agencies' view, their rationale is evident ." Id. (Emphasis added.) In so holding, this office reasoned:
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 [agencies] 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.
Id., p. 4. This office reaches the same conclusion here. A copy of 09-ORD-100 is attached hereto and incorporated by reference.
Although infrastructure records, and/or maps and drawings of the Harding Street Storm Water Project appear to fall within the parameters of KRS 61.878(1)(m) 1.f. and g., respectively, and the infrastructure system "could be subjected to a 'terrorist act, ' such as a criminal act intended to '[d]isrupt a system identified in subparagraph 1.f.' KRS 61.878(1)(m)2.b.," as in 05-ORD-175 and 09-ORD-100 the agency has failed to establish that disclosure of the records in dispute "would result in a 'reasonable likelihood of threatening the public safety by exposing a vulnerability, ' as required by KRS 61.878(1)(m)." 05-ORD-175, p. 4. Even if the City believes that its "rationale is evident," its "recitation of the statutory language was not, standing alone," sufficient to satisfy its burden of proof under KRS 61.880(2)(c). To hold otherwise would contravene the legislative intent codified at KRS 61.871, and the statutory language codified at KRS 61.878(1)(m), as previously applied in these governing precedents.
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.
Distributed to:Clay P. MooreDonna PeekH. Vincent Pennington, III
Footnotes
Footnotes
1 In relevant part, KRS 61.880(2)(c) provides that "[t]he burden of proof in sustaining the action shall rest with the agency, . . . "
2 Inasmuch as the drawings and specifications for the Project are the only records currently in dispute, this office assumes that Ms. Peek is referring to documents previously requested and/or those produced in response to Mr. Moore's related claims on appeal such as meeting minutes, etc.
3 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
4 "Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve," the Attorney General has recognized, "will a determination of what is a 'reasonable time for inspection turn on the particular facts presented.' . . . In all other instances, 'timely access' . . . is defined as 'any time less than three days from agency receipt of the request.' [Citations omitted.]" 01-ORD-140, pp. 3-4.