Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kenton/Boone Counties Cable Television Board's (hereafter "Board") denial of Mr. Donald J. Ruberg's open records request to inspect certain records of the Board.
By letter dated February 22, 1996, Mr. Ruberg requested to inspect and receive copies of the following records relevant to this appeal:
At the meeting of the former members of the Kenton/Boone Counties Cable Television Board on February 21st, there were several documents mentioned therein, some of which were distributed to the members, which TKR is interested in receiving a copy. These items are as follows:
1. Interlocal Agreement - At the meeting of February 21st, you and Bill Gullett reported that the Attorney General had requested certain technical changes be made in the document. Bill stated that these changes were being made and a new document would be sent back to the Attorney General as early as today. Accordingly, I would like to see:
. . .
(e) any correspondence from the cities of Bromley, Covington, Crescent Park, Crescent Springs, Crestview Hills, Edgewood, Elsmere, Erlanger, Fairview, Florence, Fort Wright, Independence, Kentonvale, Lakeside Park, Latonia Lakes, Ludlow, Newport, Park Hills, Ryland Heights, Taylor Mill, Union, Villa Hills, Visalia, Walton, as well as the Fiscal Courts of Kenton and Boone Counties Cable Television Boards, it agents, representatives or attorneys relative to the Interlocal Government Agreement not previously provided.
(f) any correspondence to the cities of Bromley, Covington, Crescent Park, Crescent Springs, Crestview Hills, Edgewood, Elsmere, Erlanger, Fairview, Florence, Fort Wright, Independence, Kentonvale, Lakeside Park, Latonia Lakes, Ludlow, Newport, Park Hills, Ryland Heights, Taylor Mill, Union, Villa Hills, Visalia, Walton, as well as the Fiscal Courts of Kenton and Boone Counties, their agents, representatives or attorneys to the Kenton/Boone Counties Cable Television Boards, it agents, representatives or attorneys relative to the Interlocal Government Agreement.
5. Correspondence relative to continued operations of the Kenton/Boone Counties Cable Television Board - Rumors are rampant that the Board is either curtailing or ceasing operations as of March 1st. To date, nothing has been discussed relative to this in an open session. Additionally, nothing relative to this subject has been shared with TKR. Accordingly, I would like to review any and all correspondence, memoranda or documents dealing with curtailed operations of the Kenton/Boone Counties CATV Board.
By letter dated February 27, 1996, Mr. Walter J. Pagan, Executive Director, Kenton/Boone Counties Cable Television Board, responded to Mr. Ruberg's request, stating in relevant part:
1. Concerning the request set forth in paragraph 1 of your letter respecting the Interlocal Agreement and related documentation and correspondence, any and all such agreements, documentation and correspondence is presently exempted from inspection under KRS 61.878(1)(i) and (1)(j). Such provisions clearly state that public records constituting preliminary drafts, notes, preliminary recommendations and memoranda are excluded from the applications of the Kentucky Open Records Act. Pursuant to the Interlocal Cooperation Act (KRS 65.210 to 65.300), no interlocal cooperative agreement can become operative or "enter into force" without the prior approval of the Attorney General. To this date, no approval has been given by the Attorney General with respect to the proposed Interlocal Agreement.
Until the Attorney General so approves the proposed Interlocal Agreement, we consider all copies thereof to be in draft form and, thus, preliminary in nature. The Cable Board refers you to Kentucky Attorney General Opinion 84-217. In that opinion, it is stated by negative implication that interlocal cooperative agreements are not ". . . open to public inspection [until] . . . it constitutes final action . . . [and] . . . filed with the county clerk of the county which is party to the agreement . . . ." Again, as no approval has yet been obtained and no filing has been effected, the Interlocal Agreement, including all drafts, modifications and revisions thereof, is not "final" and not open to inspection.
With respect to the request for all related correspondence to and from the Cable Board, the proposed participating local governments and the Attorney General, the Cable Board also considers such correspondence, if any, to constitute "preliminary recommendations, and preliminary memorandum in which opinions are expressed or policies formulated or recommended. " See KRS 61.878(1)(j). As stated above, until the proposed Interlocal Agreement is finally approved by the Attorney General and filed with the appropriate county clerk, all related documentation is not final, is preliminary in nature, and is not open to inspection.
We assure you, however, that once the proposed Interlocal Agreement is approved by the Attorney General and appropriately recorded, inspection of the same will be permitted upon your or TKR's request.
4. As to your paragraph 5 respecting correspondence relative to the "rumored" curtailment or cessation of Cable Board operations, there is no such correspondence except for a single intra-office memorandum circulated among the Cable Board staff. As no final agency action has occurred and the correspondence is intra-office which provides for observations and opinions, it is preliminary in nature and not subject to inspection at the present time as provided in KRS 61.878(1)(j). Also, the Cable Board refers you to Kentucky Attorney General Opinions, 86-37, 86-58, 87-1 and 87-23. These opinions deal with intra-office memoranda which deal with observations or preliminary actions not requiring inspection by a requestor.
In his letter of appeal, Mr. Ruberg asks this office to determine whether the Board's denial of his request was consistent with the Open Records Act. For the reasons which follow, we conclude the Board properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Ruberg's request for correspondence to and from various local entities relative to the Interlocal Agreement and an intraoffice memorandum which contained preliminary recommendations and opinions, but that any such records that were made part of or incorporated into final agency action must be disclosed, since these records have forfeited their preliminary characterization. We conclude the Board improperly denied Mr. Ruberg's request to inspect a copy of the Interlocal Agreement that had been forwarded to the Attorney General for approval.
KRS 61.878(1)(i) and (j) permit an agency to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. 94-ORD-92. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
The Board asserts, as its basis for denial, that the requested correspondence and an intra-office memorandum circulated among the Board staff are preliminary in nature and contain preliminary recommendations and preliminary memoranda in which observations and opinions are expressed, and are therefore excluded from public inspection by operation of KRS 61.878(1)(i) and (j). In 94-ORD-135, this office stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
We conclude that to the extent that any of the requested correspondence or the intra-office memorandum contain preliminary recommendations, or consist of preliminary memoranda in which observations or opinions are expressed, which were not incorporated into the Interlocal Agreement or final agency action, the Board properly withheld those records pursuant to KRS 61.878(1)(i) and (j). However, any such records which were referred to or incorporated into the Interlocal Agreement or final agency action by the Board must be disclosed insofar as these records have forfeited their preliminary characterization.
We conclude that for purposes of the Open Records Act, the Interlocal Agreement is a document which represents final agency action by the Kenton/Boone Counties Cable Television Board. Although the Interlocal Agreement does not become operative until it is approved by the Attorney General and filed with the appropriate county clerk and the Secretary of State, action taken by the Board, when it is submitted to the Attorney General, is final. At this point in time, the terms of the Agreement have been finalized, signed by the parties and forwarded to the Attorney General for approval.
In fact, KRS 65.260(2) provides in part: "The Attorney General shall approve any agreement submitted to him under this subsection unless he finds it does not meet the conditions set forth in KRS 65.210 to 65.300." The Board's action is complete and final at the time of its submission to the Attorney General; there is nothing further for it to do. If the Attorney General sends the Agreement back requesting that technical changes be made and they are made, as was apparently done in this instance, the revised document again constitutes final agency action and is open to inspection upon its resubmission to the Attorney General.
See
University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992), in which the Supreme Court, in construing what is now KRS 61.878(1)(i) and (j), held that the University of Kentucky's report to the NCAA concerning the investigation of the men's basketball program was not exempt from disclosure because the report was a "final action" by the University, notwithstanding that the NCAA had not adopted any part of the report as a part of its final action.
Accordingly, we conclude that the Board acted inconsistently with the Open Records Act when it denied that portion of Mr. Ruberg's request to inspect a copy of the Interlocal Agreement which the Board had forwarded to the Attorney General.
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.