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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Transportation Cabinet Denial Of Public Access To Permit Applications Challenged  Posted: May 24, 2006
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com
www.kyrc.org

May 24, 2006

Hon. Greg Stumbo
Office of the Attorney General
State Capitol
Frankfort, Kentucky 40601

Re: Request for Review of Denial of Open Records Request Kentucky Transportation Cabinet – February 27, 2006

Dear Attorney General Stumbo:

I am writing to request review pursuant to KRS 61.880(1) and (2)(a) of the determination of the Kentucky Transportation Cabinet to deny certain records that I believe they are required to disclose under state law.

Specifically, on December 6, 2005, an Open Records Act (ORA) Request was sent to Ann Stansel, General Counsel of the Kentucky Transportation Cabinet, requesting a:

complete copy of any application filed requesting KYTC approval of
a plan for reconfiguration of the intersection and northbound
entrance ramp of I-65 at the Outer Loop in Jefferson County?
I need the application and any maps as well as correspondence
between KYTC Frankfort or Louisville District office and Hagan
properties or their agents, and between KYTC and the Federal
Highway Administration office concerning this project.

Hagan Properties has applied to the state Transportation Cabinet for a permit under KRS 177.106 to encroach on the northbound entrance ramp to I-65 at the Outer Loop in order to create a new entrance onto the Outer Loop for a property on which it intends to construct the controversial “Shadowwood Mall.”

After receiving no response for two and ˝ months, KRC inquired by telephone of the status of the ORA Request and received on February 27, 2006 this response from Transportation Cabinet Assistant General Counsel J. Todd Shipp:

This will acknowledge and serve as this Cabinet’s response
to your Open records request asking to be provided with a
copy of the application filed requesting KYTC approval of
a plan for reconfiguration of the intersection and northbound
entrance ramp of I-65 at the Outer Loop in Jefferson County,
along with any maps and correspondence between KYTC and Hagan
Properties or their agents, and between KYTC and the Federal
Highway Administration concerning this project.

Please be advised that, at this time, a permit for this
project has not been issued. Until such time as the permit is
issued, all applications and corresponding documents retain
preliminary status and are not subject to public inspection.
KRS 61.878(1)(i)(j). (sic) As such, your request is denied.

The failure to disclose the permit application with supporting documents and maps is a clear and flagrant violation of the Kentucky Open Records Act. With respect to the correspondence between the Transportation Cabinet and the applicant, the agency is under an obligation to redact information of a personal nature and to disclosure other correspondence, such as notices of deficiency or other items of an informational nature that would reflect the status of agency and applicant compliance with applicable law.

Discussion and Grounds For Review

Any analysis of a denial of a request to inspect public records begins with the assumption that disclosure is the rule, and nondisclosure the exception. KRS 61.871 announces the public interest of the Commonwealth to be in “free and open examination of public records” and directs that any exceptions provided for in KRS 61.878 be “strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.”

In furtherance of that bias towards disclosure, the General Assembly established a “right to inspect public records” in KRS 61.872(2) and placed the burden of sustaining a denial of access to records on the agency. KRS 61.880(2)(c).

In this instance, the agency has relied on two subsections of KRS 61.878(1) in its belated denial of access to the public records.

KRS 61.878(1)(i) DOES NOT ALLOW NONDISCLOSURE OF PERMIT APPLICATIONS AND MAPS, NOR OF CORRESPONDENCE BETWEEN PUBLIC AGENCIES

KRS 61.878(1)(i), the first of the two subsections relied upon, provides for exclusion from the provisions of KRS 61.870 to 61.884 for "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]"

Nowhere in that subsection is there an exclusion from disclosure for permit applications and maps. As the Office of the Attorney General noted in OAG 79.69 and reaffirmed in 93-ORD-22, “information required for obtaining a permit is a public record, and therefore subject to inspection.” 93-ORD-22, 1993 Ky. AG Lexis 43 (March 2, 1993). In rejecting the attempt by the Barren County Property Valuation Administrator to deny access to building permits and permit applications, the Office of the Attorney General noted “we are not aware of any provision of the statutes under which inspection of these records may be withheld.”

Disclosure of the permit application, maps, and any documents in support of the request for an encroachment permit are not exempted from disclosure under 61.878(1)(i).

Similarly, nothing in KRS 61.878(1)(i) authorizes withholding of maps filed with the permit application, nor of official correspondence between the state Transportation Cabinet and the Federal Highway Administration. The Federal Highway Administration is part of the review process since the particular encroachment permit would encroach on federal highway right-of-way, and correspondence between those public agencies is not governed under KRS 61.878(1)(i).

With respect to correspondence between the agency and the permit applicant, KRC believes that any correspondence that requests information, which notes deficiencies in the application, or which is of a factual nature must be disclosed since it is outside of the ambit of “correspondence” that the General Assembly sought to shield under 61.878(1)(i).

Where a business entity such as Hagan Properties seeks approval to encroach on public right-of-way in order to support a Wal-Mart and other mall stores, the correspondence is not between an agency and a “private individual,” nor if the correspondence of personal nature such that disclosure would be considered an invasion of privacy. There is no reasonable expectation for an applicant who seeks approval to encroach on a public right-of-way that official correspondence from the agency concerning the sufficiency and status of the application will be exempt from disclosure.

KRS 61.878(1)(J) IS INAPPOSITE SINCE NO PRELIMINARY MEMORANDA OR RECOMMENDATIONS WERE REQUESTED; ANY SUCH OPINIONS OR RECOMMENDATIONS CONTAINED IN INTER-AGENCY CORRESPONDENCE MUST BE REDACTED AND THE REMAINDER OF THE DOCUMENT DISCLOSED

The second subsection cited by the Transportation Cabinet as authorizing nondisclosure of the requested records was KRS 61.878(1)(j), which provides for exclusion from the provisions of KRS 61.870 to 61.884 for “preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]” This subsection is quite simply inapplicable to the case at hand, since KRC did not request any such documents. To the extent that any correspondence between the state and federal highway agencies or between the state Cabinet and the permit applicant contain such recommendations or opinions, the agency is under an obligation to redact such material and to disclose the remainder of the record. KRS 61.878(4).

DENIAL OF RIGHT TO RECORDS DESPRIVED KRC AND PUBLIC OF DUE PROCESS AND DEMANDS RESCHEDULING PUBLIC HEARING

In this case, failure to timely disclose the application and related documents has prejudiced the rights of KRC and the Okolona residents who are concerned with the proposal to shorten by 1/3 the northbound entrance ramp to I-65 in order to support a proposed Wal-Mart and mall.

The process for review and issuance of an encroachment permit by the Kentucky Transportation Cabinet is governed by KRS 177.106 and 603 KAR 5:120 and is a 26-step process. (See attached worksheet). Step 10 of the process involves one-time publication of a legal notice one week in advance of a public hearing, consistent with 600 KAR 1:030 and as provided by 603 KAR 5:120 Section 4(5).

The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). In this instance, the denial of timely access to the public records resulted in a denial of the due process guarantee of reasonable notice and a right to be heard.

Unbeknownst to KRC or local residents, the Kentucky Transportation Cabinet published in the Courier-Journal legal ads section, an obscure advertisement on December 9, 2006 that did not provide fair notice to the public of the nature of the activity nor that the requested permit was the controversial Shadowwood Project entrance.

Ironically, the newspaper ad stated that “][t]he plans, maps, and other relevant project data are available for public inspection and copying at the Department of Highways District Office in Louisville, Kentucky.” Yet fully two months later, a request for those very documents was denied.

The agency’s belated denial of access to the records made a farce of the opportunity for a hearing and a mockery of the Open Record Act. Had the agency disclosed the requested records in a timely manner, KRC would have become aware of the imminent publication of that notice and would have been able to inform local residents of their opportunity for hearing.

As it was, no one in the affected community saw the notice until long after the close of the period during which a hearing could be held, and the agency has refused to re-notice and provide an opportunity for hearing on the controversial proposal. (see attached email from Shari Greenwell, Assistant State Highway Engineer).

The failure to disclose the records prejudiced the due process rights of local residents, by both denying the opportunity to discover the comment period, and also by assuring that any hearing that would have been held would have been a hollow process, since the agency had denied access to the permit application and other documents necessary to allow for informed public participation and precluding independent expert review of the feasibility and safety of encroaching into an Interstate Highway entrance ramp. The result of the inadequate notice and wrongful denial of timely access to public records is to shift to the courts the review of the procedural irregularities and failures of the agency, rather than to allow timely and informed public involvement on the requested encroachment.

For these reasons, KRC requests that the Kentucky Transportation Cabinet be directed to immediately release for public access the permit application and all supporting documentation, studies and maps provided by the applicant, and any official correspondence between the agency and federal highway agencies or the permit applicant.

Further, due to the preclusion of meaningful public involvement because of the failure to timely disclose the records, KRC asks that the Cabinet be directed to re-notice the opportunity for a public hearing in order to cure the deprivation of meaningful notice and an opportunity to be heard occasioned by the denial of access to the agency records.


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