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 Spencer County Emergency Management Agency violated the Kentucky Open Records Act in denying Lawrence Trageser's July 24, 2013, request for "any record or document reflecting the emergency management plan and or [sic] any official response plan to any accidents, explosions or emergency situations, dealing with the underground petroleum pipeline running across Spencer County. The pipeline is believed to be owned and or [sic] operated by Ashland Oil Company." By letter dated July 29, 2013, Treasure Bryant, Spencer County Attorney's Office, responded on behalf of Emergency Management Director Jeff Coulter, to whom the requested was directed, advising Mr. Trageser that his request was denied "pursuant to KRS 61.878(m). The disclosure of this information 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. The disclosure of this information would release information regarding the location, configuration and security of a critical system."
By letter dated September 4, 2013, Mr. Trageser initiated this appeal. He noted that under Section 1.5.3 of the "Emergency Planning and Community Right-to-Know Act of 1986 [EPCRA](Title III of SARA[Superfund Amendment and Reauthorization Act of 1986]), he has the right and authority to be advised, educated and understand the hazards located within his living jurisdiction and actions he should take in the event of an emergency situation[.]" He further advised that he was enclosing "several pages from Title III" that discuss the role of the Local Emergency Planning Committee (LEPC). Upon receiving notification of Mr. Trageser's appeal from this office, Spencer County Attorney Ruth A. Hollan elaborated upon the agency's position. She advised that the "purpose of SARA Title III is to encourage and support emergency planning for responding to chemical accidents and to provide local governments and the public with information about possible chemical hazards in their communities." The EPCRA "establishes an ongoing forum called Local Emergency Planning Committee (LEPC)," Ms. Hollan explained, which has four primary responsibilities: 1) write emergency plans to protect the public from chemical accidents; 2) Establish procedures to warn and, if necessary, evacuate the public in case of an emergency; 3) Provide citizens and local governments with information about hazardous chemicals and accidental release of chemicals in their communities; and 4) Assist in the preparation of public reports on annual release of toxic chemicals into the air, water and soil.
Ms. Hollan further advised that the Community Right-to-Know reporting requirement is designed "to increase community awareness and to facilitate emergency planning. " This section applies to any facility that is required by the Occupational Safety and Health Administration (OSHA) under its Hazard Communication Standard "to prepare or have available a Material Safety Data Sheet (MSDS) for a hazardous chemical that it has on-site, for any one day in a calendar year, in an amount equal to or greater than the threshold limits established by the EPA." If a facility is subject to reporting under these sections, it must "submit information to the SERC [State Emergency Response Commission], the LEPC and the local fire department with jurisdiction over the facility under two categories: MSDS reporting and inventory reporting."
According to Ms. Hollan, the information that Mr. Trageser would be entitled to under Title III of SARA is the "MSDS for hazardous chemicals of facilities that are required to file said MSDS with SERC, LEPC and the local fire department, notification of accidental release of chemicals in the community and any public reports on the annual release of toxic chemicals into the air, water and soil in the community." Ms. Hollan attached a "Fact Sheet issued by the EPA that outlines the requirements." However, she advised, this is not the information that he requested." (Original emphasis.) Regarding the only information that was actually requested (notwithstanding Mr. Trageser's reference(s) to EPCRA on appeal), she reiterated the agency's original response, in relevant part, verbatim; she further asserted that if Mr. Trageser feels the agency has violated Title III of SARA he should initiate a complaint "with the Federal government" as the agency complied with the Open Records Act. Based upon the reasoning contained in 12-ORD-136, a copy of which is attached hereto and incorporated by reference, this office must respectfully disagree. In so holding, this office is not disagreeing with Emergency Management's interpretation of EPCRA or making any finding relative to application thereof, nor is the Attorney General suggesting that Emergency Management cannot successfully build a case for withholding part or all of the documents "reflecting the emergency management plan and/or any official response plan" to accidents, explosions or emergency situations involving the underground pipeline by explaining with more specificity how and why KRS 61.878(1)(m)1. applies here, only that it has not done so thus far.
"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. Emergency Management did not reference any of the subsections codified at KRS 61.878(1)(m), either initially or in responding to Mr. Trageser's appeal, but paraphrased the prefatory language codified at KRS 61.878(1)(m)1. and implicitly relied upon 61.878(1)(m)1.f., which it also paraphrased in part. Because Emergency Management failed to provide any explanation of how KRS 61.878(1)(m) applied to the specific records being withheld, as required under KRS 61.880(1), 61.880(2)(c), and prior decisions applying that exception, this office must conclude that Emergency Management violated the Act in denying the request.
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:
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. 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, Emergency Management's denial is deficient. Further support for this conclusion is also found in 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)." 09-ORD-100, p. 4. 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.
More recently, this office was asked to determine whether the City of Danville violated the Kentucky Open Records Act in denying a request for "'one (1) copy of all the drawings and specifications of the Harding Street Storm Water Project.'" 12-ORD-136, p. 1. The City denied the 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. '" Id. In support of its position, the City paraphrased several different subsections of KRS 61.878(1)(m)1., upon which it 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.) Id., p. 2. The City made "no attempt, either initially or in response to [the] 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 [.]" Id. Accordingly, this office determined that the City of Danville had not satisfied its burden of proof in accordance with KRS 61.880(1) and (2)(c), relying upon the reasoning contained in 05-ORD-175 and 09-ORD-100. See 12-ORD-136, pp. 7-9.
In so holding, this office noted that it was not suggesting the City could not 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 to such records, only that it had failed to do so. Id., p. 2. "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," this office concluded, "'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.,'" the agency "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).'" 12-ORD-136, p. 9, quoting 05-ORD-175, p. 4. This office reaches the same conclusion here.
In responding to both Mr. Trageser's request for "any record or document reflecting the emergency management plan" and/or "any official response plan to any accidents, explosions or emergency situations" that may arise involving the underground pipeline and his appeal, Emergency Management referenced "KRS 61.878(m)" and indicated that disclosure of any such plan(s) "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. " Without further elaboration, Emergency Management asserted that disclosure "of this information would release information regarding the location, configuration and security of a critical system." Although such a plan(s) appears to fall within the parameters of KRS 61.878(1)(m)1.f., upon which Emergency Management implicitly relied, and the pipeline "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 12-ORD-136, and the authorities upon which it was premised, 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)." 12-ORD-136, p. 9. Even if the agency 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) . 09-ORD-100, p. 4; 12-ORD-136. 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:
Lawrence TrageserJeff CoulterRuth A. Hollan