Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Investigator Kyle Elliott, Kentucky State Board of Licensure for Professional Engineers and Land Surveyors, initiated this appeal by letter dated December 3, 2015, challenging the denial by the Louisville Metro Air Pollution Control District ("District") of his October 27, 2015, request for a copy of a "Best Available Control Technology (BACT) report, prepared by Ayer Quality Engineering, LLC, ["Ayer"] of Mariemont, Ohio, in relation to an investigation of alleged violations by Reynolds Foil (Reynolds Consumer Products, LLC)["Reynolds"]." In a timely written response, the District advised Mr. Elliott that "our agency has withheld this record as exempt pursuant to KRS 61.878(1)(i) and (j) because the document is preliminary correspondence with private individuals that is not intended to give notice of final action, and contains preliminary recommendations, in which opinions are expressed." The District also cited KRS 61.878(1)(c)1. because the BACT report "contains information generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors. "
On appeal Mr. Elliott provided the following context:
In August of 2012, [Reynolds] discovered some newly installed components of their rolling mills that were supposed to reduce the release of volatile organic compounds (VOCs) had increased the release of VOCs instead. The increased release of VOCs may have violated Reynolds['] Title V Permit with the [District]. Reynolds voluntarily reported this increase to [the District] in September of 2012.
In 2013, Ayer Quality Engineering, LLC, through Matthew Ayer, a licensed professional engineer in the state of Ohio, prepared a BACT study and report for Reynolds. A BACT means an emission limitation based on the maximum degree of reduction of a pollutant emitted from a facility, which the permitting authority, in this case the [District], on a case-by-case basis, taking into account energy, environment, and economic impacts and other costs, determines is achievable for the facility through the application of production processes and available methods, systems, and techniques for control of each pollutant (see 42 U.S.C.A. Ch. 85, Subch. 1, Pt. C, Subpt. 1, § 7479). . . .
According to Mr. Elliott, on March 18, 2015, the Louisville Metro Air Pollution Control Board (Board), following a public comment period, entered into an Agreed Board Order with Reynolds (a copy of which he enclosed), "at least in part adopting the recommendations in the Ayer BACT. The Agreed Board Order is a final action by the Board, and the Ayer BACT should no longer be considered preliminary[. ]"
Mr. Elliott further argued that KRS 61.878(1)(c)1. is not applicable on the facts presented insofar as KRS 61.878(1)(c)(3) negates the former provision as "to records the disclosure or publication of which is directed by another statute" and Reynolds is "required to disclose, 'information, analyses, plans or specifications as will disclose the nature, extent, quantity, or degree of air contaminants which are or may be discharged' by the [District] or the Board's own enabling statutes at KRS 77.215." 1 In the event that disclosure of any of the BACT report may permit an unfair commercial advantage to competitors of Reynolds, Mr. Elliott advised that "a redacted version of the report containing all such information that is not proprietary would be acceptable." Based upon the following, this office finds the District's initial response both procedurally and substantively deficient but affirms the denial on the bases of KRS 61.878(1)(i) and (j) in light of information that was ultimately provided on appeal in response to requests made by this office pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. 2
A public agency such as the District must comply with procedural and substantive requirements of the Open Records Act regardless of the requester's identity or purpose in requesting access to public records. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that a public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Accordingly, the Kentucky Court of Appeals observed that "[t]he 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."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. Accordingly, this office has long recognized that a public agency has the burden of justifying its denial on appeal to the Attorney General or to the circuit court. KRS 61.880(2)(c); KRS 61.882(3). 00-ORD-10, pp. 10-11(citation omitted). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11. The District responded within three business days per KRS 61.880(1), and referenced the statutory exceptions upon which it relied in denying access, but paraphrased the statutory language without providing any explanation of how KRS 61.878(1)(i) and (j), or 61.878(1)(c)1., applied to the records withheld as required under KRS 61.880(1) and 61.880(2)(c).
By letter dated December 23, 2015, counsel for the District asserted that if release of the report by Ayer did not satisfy Mr. Elliott's request, her client maintained that his appeal should be denied for the reasons originally cited. In addressing Mr. Elliott's contention that the Agreed Board Order "at least in part adopted the recommendations in the" BACT report, 3 counsel argued that Mr. Elliott "does not cite any language specifically referring to the BACT report in the Order. The [District] asserts that the findings of the BACT report were not incorporated into the Order. The District reviewed it during the course of settlement negotiations, but did not adopt any of its recommendations. " (Emphasis added.) As such, the District maintained, the BACT report maintained its preliminary status and was properly withheld. Given the limited evidence presented regarding the content of the BACT report and whether any of the information contained therein was adopted or formed the basis of the District's final action, regardless of whether it was expressly incorporated or not, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 this office asked counsel to provide a complete version of the report for in camera review.
In attempting to determine whether KRS 61.878(1)(i) and (j) were properly invoked, this office asked counsel whether any of the recommendations contained in the BACT report were relied upon as the basis of the final action by the District, i.e. , the Agreed Board Order, in whole or in part, whether explicitly or implicitly. 4 See 01-ORD-83; 11-ORD-052. The District initially advised that it did not rely upon the BACT report, in whole or in part, explicitly or implicitly, without further explanation. However, in response to additional questions the District advised that the BACT report was not presented or discussed at the Board meeting. Counsel observed that the "Order itself contains the background information that was the basis of the decision. The BACT report was not a part of that decision, nor was it mentioned in the Order." The District also provided the official minutes of the public hearing and the meeting at which the Board voted to approve the Order as well as the "District Manager's official remarks at the hearing." Counsel emphasized that "no mention of the BACT report" is found in any of these documents, a correct if not dispositive assertion. Mr. Elliott replied that "available evidence appears to suggest otherwise." Specifically, Mr. Elliott pointed to pages 14 and 30 of the BACT report pertaining to "mist eliminators" and emphasized that, among other things, in the final action Reynolds agreed to "install mist control improvements...." Mr. Elliott also noted that the District requested the BACT report and the "resolution of the violations" in the Order appears "to mirror the findings in the BACT report."
In addressing these points, the District offered the following explanation:
The Agreed Board Order with Reynolds from March 2015 does list mist control as part of the resolution. This was offered by the company as part of [the] overall settlement, but was never determined by the District to constitute "BACT." In this case, the District never required "BACT" as evidenced by the Order. Additionally, mist control/mist eliminators are not specific to Reynolds or to the BACT submitted as part of settlement negotiations. The inclusion of mist control in the Order was not due to any reference in the BACT report . The District was well aware of the technology already being applied to the other mills at Reynolds, prior to the report being submitted.
(Emphasis added.) When viewed in light of the following, this explanation of the agreed upon terms in the Order, which, in relevant part, otherwise appeared to implicitly adopt sections of the BACT report, is adequate to justify the District's reliance upon KRS 61.878(1)(i) and (j).
"Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 5
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994); see
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(holding that "purely investigative materials" remain exempt under the statute and City of Louisville but "once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status");
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); see 99-ORD-220; 11-ORD-052.
Applying the cited exceptions to reports generated during the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, in City of Louisville the Court of Appeals observed that "Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police. Its information is submitted for review to the Chief who alone determines what final action is taken." Id. at 659. The Court reasoned that "at that point the work of Internal Affairs is final as to its own role," but "remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent." Id. See 97-ORD-168, pp. 5-6 (citation omitted); compare 01-ORD-47; 01-ORD-83. The Kentucky Court of Appeals reaffirmed this controlling line of authority in
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that e-mails between public employees prior to a scheduled meeting that was being held to discuss a matter still under negotiation qualified for protection under KRS 61.878(1)(i) and (j) as "piecemeal disclosure along the path of the decision making process is not mandatory"); see 14-ORD-024. Notwithstanding the deficiencies in the District's original response and initial response to Mr. Elliott's appeal, this office affirms the District's ultimate disposition of his request on the bases of KRS 61.878(1)(i) and (j) as the record on appeal now establishes that the BACT report in dispute was not adopted, in whole or in part, as the basis of the District's final action.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court under 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 In the alternative, Mr. Elliott cited KRS 61.878(5), noting that his Board is currently "investigating Ayer Quality Engineering, LLC, and Matthew Ayer to determine if there have [been] violations of KRS [Chapter] 322[.]" However, KRS 61.878(5) is not a mandatory provision. 01-ORD-119, p. 6; 96-ORD-177, p. 7.
2 Further discussion of KRS 61.878(1)(c)1 is therefore unnecessary.
3 The District observed that Mr. Elliott "states that the records were incorporated into the" Agreed Board Order. (Emphasis added.) Use of "incorporate" and "adopt" interchangeably created a question as to whether the BACT report was relied upon as the basis for the final action.
4 The record on appeal did not contain sufficient information because "our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action." 11-ORD-052, p. 3.
5 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.