Request By:
Gary Werenskjold, Commissioner
Department for Adult and Technical Education
500 Mero Street
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Mr. Robert Koo, Mr. Donald Duff has appealed to the Attorney General pursuant to KRS 61.880 your denial of his client's June 28, 1991, and July 9, 1991, request to inspect certain documents in your custody. Mr. Koo, a Kentucky Tech Auxiliary Services Specialist in Region 7, was notified on June 17, 1991, that he was "subject to layoff on or about August 15, 1991."
In his June 28 request, Mr. Koo sought access to the program assessment prepared by Mr. Jack Corwin at your request. As a result of apparent delays in the delivery of your faxed response of July 5, 1991, Mr. Koo did not receive the response until July 17, 1991. In that letter, you explained that all regional executive directors were instructed to conduct program assessments to assist the Kentucky Tech System in determining which programs "were no longer relevant and effective when compared to other regional priorities." You did not expressly deny Mr. Koo's request. Nor, however, did you indicate that he would be allowed access to the document. Instead, you attached a copy of an open records request form to be used if he "wish[ed] to request specific records from [the Cabinet]."
Following a pre-layoff conference on July 9, 1991, Mr. Koo submitted a second request in which he again asked to inspect Mr. Corwin's program assessment and in addition, the layoff plan affecting him. You denied that request in a letter dated July 12, 1991. Relying on KRS 61.878(1)(h), you explained:
The first document you have requested, the lay-off plan affecting you personally, is a preliminary recommendation as the word 'plan' indicates. Furthermore, the lay-off plan affects positions. In addition, you have not been affected in that no final decision has been made with regard to your lay-off status.
The second request regarding an alleged response of Mr. Jack Corwin to a memorandum entitled COMR 91-14 is a preliminary recommendation and a preliminary memorandum in which opinions are expressed or policies formulated or recommended with regard to an assessment of a program, as opposed to documentation that relates to you personally. If the documents you requested are in existence, they are classified as intra-office memoranda containing preliminary recommendations and expressions of opinion which have to do with the formulation of policies, therefore, they may be withheld from public inspection.
In his letter of appeal to this Office, Mr. Duff asserts that your denial of his client's request was improper. In support of his position, he cites KRS 61.878(3), which provides:
No exemption in this section shall be construed to deny, abridge or impede the right of a state employe, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. Such records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A state employe, applicant or eligible shall not have the right to inspect or to copy any examination.
On behalf of the Cabinet, Ms. Beverly Haverstock, of the Office of Legal Services, responded to your arguments in a letter dated August 5, 1991. Ms. Haverstock restated the Cabinet's position that the layoff plan "is a mere 'plan' as the title of this document plainly states, it is not a final action taken by this agency." She analogizes the document to the list of persons recommended for appointment and directed to the Governor's Office which we held exempt as a preliminary document in OAG 88-85. Ms. Haverstock also reasserts the Cabinet's view that the program assessment prepared by Mr. Corwin, if it exists, is an internal memorandum exempt from inspection under KRS 61.878(1)(h) and this Office's opinions in OAG 86-32, OAG 86-64 and OAG 85-104.
With respect to Mr. Duff's argument that KRS 61.878(3) mandates disclosure of any record which relates to his client since he is a "state employee, " Ms. Haverstock cites OAG 79-469, in which this Office stated:
It is our opinion that a person is not entitled to see all intra-office records pertaining to him since some records may be withheld because they are exempt under KRS 61.878(1)(h), preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
She expresses the belief that this opinion demonstrates the fallacy of Mr. Duff's argument.
Mr. Duff asks that we review the Cabinet's denial of his client's request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your decision to withhold the documents was consistent with the Act, when that decision was made, but that final action having now been taken, those documents, to the extent that they are incorporated into final agency action, must be released.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that the Cabinet's denial of Mr. Koo's open records request, although proper at the time that the request was submitted, cannot now be sustained. KRS 61.878(1)(h) exempts from public inspection, "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " That provision, along with KRS 61.878(1)(g), has been construed to exempt documents generated in the course of the agency's deliberative process to protect the integrity of the process. Thus, in the opinions cited in support of your position, this Office held that inter- and intra-office memoranda, setting forth the opinions, observations and recommendations of agency personnel, which do not represent the agency's final decision on the matter, may be excluded from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 85-104; OAG 86-5; OAG 86-32; OAG 86-64; OAG 88-85.
Although we do not believe that an agency "should be reqired to 'operate in a fishbowl,' . . . by the same token we do not feel that appellants should be required to operate in a darkroom."
American Mail Line, Ltd. v. Gulick, 411 F.2d 696, 703 (D.C. Cir. 1969). Thus, the Courts, and this Office, have recognized that although preliminary records are generally exempt under the Open Records Act, their preliminary status is lost to the extent that they are used in an agency's response and are thus adopted as part of its final action.
City of Louisville v. The Courier-Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); OAG 83-41; OAG 89-69; OAG 91-90. Once adopted as the basis for final agency action, there is no longer any justification for withholding the documents. As the United States Supreme Court observed in
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161, 44 L. Ed. 2d 29, 53, 95 S. Ct. 1504 (1975), construing the federal analogue to the "deliberative process" exemption:
The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports the District Court's decision below. Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.
In City of Louisville, supra, the Kentucky Court of Appeals held that subsections (g) and (h) authorized nondisclosure of a report prepared by the Internal Affairs Unit of the Louisville Police Department regarding citizen complaints against a police officer. The court reasoned:
Internal Affairs . . . 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 to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendation as part of his final action, clearly the preliminary characterization is lost to that extent.
City of Louisville, supra, at 659. (Emphasis added.) The court reached the same result in Kentucky State Board of Medical Licensure, supra, holding:
[T]hose documents defined in subsections (g) and (h) which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under subsection (f) [relating to records of agencies involved in administrative adjudications], unless exempted by other provisions of KRS 61.870 through KRS 61.884.
Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under subsections (g) and (h) of the Act.
Kentucky State Board of Medical Licensure, supra, at 956. (Emphasis added.)
This Office has consistently held that preliminary inter-office and intra-office memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agencies' final action may be withheld from public inspection purusant to KRS 61.878(1)(g) and (h). OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23. However, any such documents that are incorporated into final agency action are public records and must be released. OAG 83-41; OAG 89-69.
In OAG 89-69, this Office held that the Natural Resources and Environmental Protection Cabinet improperly denied a request to inspect a memorandum prepared for the Division of Air Quality by the Cabinet's Department of Law. We noted that the memorandum was not a preliminary document within the meaning of KRS 61.878(1)(g) or (h). At page 3 of that opinion, we observed:
This office has reviewed both the legal memorandum and the notice of agency action appearing in the Eddins-Gale letter. It is plain to see that the Cabinet did adopt what was originally a preliminary memorandum as part of its final action. The Eddins-Gale letter not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet for the action taken. The letter states that the memorandum had been requested, that it was now 'in hand,' what was the recommendation, and that '[t]herefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.
Similarly, in OAG 91-90, we considered an appeal from the decision of Kentucky State University to withhold the Findings and Recommendations of the University's Grievance Committee in a case involving the requestor. There we concluded that since those Findings and Recommendations were adopted by the President of KSU in the letter containing her final decision, the records forfeited any protection that previously existed as preliminary documents and were subject to inspection.
On August 5, 1991, Mr. Koo was notified that he would be laid off on September 9, 1991. In this letter, evidencing the Cabinet's final action with respect to Mr. Koo's employment, the following language appears:
Pursuant to KRS 151B.085, you are hereby notified that you will be laid off from your position as Kentucky Tech Auxiliary Services Specialist, Title Code No. 0586, located in Kenton County - Region 7, effective September 9, 1991. The letter dated June 17, 1991 advised, pursuant to the Department for Adult and Technical Education's approved Layoff Plan, you were subject to layoff. This layoff is due to the abolishment of position number 46-546-20-17-07-00-012.
It is apparent that the Cabinet's decision is premised on, and directly references, "the Department for Adult and Technical Education's approved Layoff Plan." No other reason or basis is given for the action. That "plan," although preliminary at the time Mr. Koo's original request was made, was adopted by the Cabinet in its final action.
We have examined the documents which the Cabinet withheld, consisting of a one-page memorandum from John G. Corwin, Executive Director for Kentucky Tech Region Seven, to Commissioner Gary Werenskjold, styled "Request for Approval of Layoff Plan," Number 91-04, and an untitled document, apparently the "layoff plan" itself, identifying the program title, the recommended action, and the rationale for the recommended action. In addition, this document contains an impact statement, identifying personnel, equipment, space and funding to be effected. The memorandum requests the elimination of Mr. Koo's position, and contains a line designated "Approved," to which you affixed your signature. The "lay off plan" also directly identified Ms. Koo and deals with the need for, and consequences of the requested action.
While these documents were preliminary interagency documents at the time he filed his initial request, no final action having been taken, they lost that status upon the Cabinet's determination that Mr. Koo would be laid off as of September 9, 1991. The notice of lay off Mr. Koo received on August 5, 1991, clearly incorporates the Approved Lay-off Plan and supporting memorandum. In each of the opinions cited by Ms. Haverstock in support of the Cabinet's position, this Office recognized that if the documents requested indicate final action, or are incorporated into final action, they forfeit their preliminary status, and are no longer exempt. OAG 85-104; OAG 86-5; OAG 86-32; OAG 86-64; OAG 88-85. Accordingly, we find that the documents can no longer be withheld.
While we need not address the applicability of KRS 61.878(3) to Mr. Koo's request, this appeal having been resolved on other grounds, we note that both Mr. Duff and Ms. Haverstock misinterpret that provision. KRS 61.878(3) mandates disclosure of otherwise exempt documents to state personnel employed by the executive branch of state government. OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It was enacted in 1986 along with a comprehensive revision to the state personnel laws contained in Chapter 18A of the Kentucky Revised Statutes, and is cross-referenced at KRS 18A.020, which provides that the records of the Personnel Department are subject to the Open Records Law. In OAG 91-128, we analyzed at some length the applicability of KRS 61.878(3) to state employees outside of the executive branch and concluded that the provision does not apply.
Mr. Koo's status is governed by KRS 151B.035(2) which provides:
The State Board for Adult and Technical Education shall adopt and establish by administrative regulations, personnel policies and procedures for all full-time and part-time unclassified employees, certified and equivalent staff, including administrative, teaching, and supervisory staff in the Department for Adult and Technical Education central office, state-operated vocational facilities, and regional staffs. The regulations shall not become effective until October 1, 1990. All other staff shall remain under the authority of the Kentucky Department of Personnel and KRS Chapter 18A.
As a member of the supervisory staff of the Department for Adult and Technical Education, he is subject to the personnel policies of that Department, and is not governed by KRS Chapter 18A. Accordingly, KRS 61.878(3) is not applicable to his open records request.
However, Ms. Haverstock's argument that Mr. Koo is not entitled to the documents based on the reasoning of OAG 79-469 is not persuasive. The cited provision was not enacted until 1986. A 1979 opinion therefore has no bearing on his request. As we noted in OAG 87-50, at p. 3:
No doubt [the requester] could not have seen such preliminary material prior to the 1986 amendment to KRS 61.878 but the statutory amendment specifically states that it overrides any of the exceptions to public inspection set forth in KRS 61.878, at least where a state employee is involved.
Because the requested documents were adopted by the Cabinet as the basis for final action, they are no longer exempt under KRS 61.878(1)(h). We leave for another day the questions raised by KRS 61.878(3).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Donald Duff. The Cabinet or Mr. Duff may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).