Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Kentucky State Treasurer's denial of Mindy Hines's September 11, 1997, request to inspect a print-out of the Treasury Department's database of lost and abandoned property reported to the Department through April 3, 1997. Ms. Hines requested "the books that were used at this year's Kentucky State Fair . . . [which] contain the same information that is on the computers." On September 17, Tim Lester, Manager of the Department's Unclaimed Property Branch, responded to Ms. Hines's request. Mr. Lester acknowledged that the list which was used at the State Fair reflected accounts that remain unclaimed at the time the list was generated, but stated that accounts are added and the list revised on a daily basis. He observed:
Because the list (books) used at the Fair included items that have only come into the Treasury since last year's advertisement, as well as older accounts, some of the accounts contained in those books have not yet been advertised. . . . The Treasury Department has yet to even fulfill its statutory requirement to alert Kentucky citizens to unclaimed property them [sic] through the advertisement of the new accounts that were included in the books.
Relying on KRS 61.878(1)(i), the Department denied Ms. Hines's request, arguing that the cited exception authorizes the nondisclosure of preliminary drafts.
In a letter submitted to this office following the commencement of this open records appeal, the Department, through its attorney, Assistant Attorney General Robert S. Jones, elaborated on its position. Invoking both KRS 61.878(1)(i) and (j), the Department explained that premature disclosure would defeat the purpose of KRS 393.110 by enabling commercial finders to contact the owners of lost and abandoned property before the Department has had an opportunity. Moreover, premature disclosure would result in an "injury to the public . . . since it would inevitably lead to the dissemination of inaccurate and misleading information." Finally, the Department stated that the sole purpose of the list is to "provide a vehicle to locate owners of unclaimed property, " and that Ms. Hines could have inspected it, along with the general public, at the Fair.
Responding to the Department's arguments in a letter to this office dated October 6, Ms. Hines noted that any damage that might be done by premature disclosure of the list was done when the list, which included accounts not yet officially published, was posted at the State Fair. Further, she stated, KRS 61.878(4), misidentified as KRS 61.880(4), provides that nonexempt portions of public records which are commingled with exempt portions must be separated, and the nonexempt portions made available for public inspection. The majority of accounts shown on the list were officially published in previous years, and these cannot even arguably be characterized as preliminary. Ms. Hines indicated that she has no "desire to see any accounts that have not yet been 'officially published' . . . [since she] respect[s] the efforts of the Treasury to return their funds on their own without 'interference of others' and tend[s] to work on cases that are at best 'hopeless'." We find these arguments persuasive, and conclude that the Department improperly relied on KRES 61.878(1)(i) and (j) in denying Ms. Hines's request.
KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
Clearly, the disputed record cannot be characterized as a preliminary recommendation or preliminary memorandum in which opinions are expressed, and therefore KRS 61.878(1)(j) is inapplicable. As we have often noted, KRS 61.878(1)(j) "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24; OAG 86-64. The purpose underlying the exception is discussed at page 4 of OAG 88-85. There we observed:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
This purpose is not served by the nondisclosure of a list containing the names and addresses of unclaimed property owners, the year the property was reported unclaimed, the amount or value of the property, and the names and addresses of companies holding the property. Simply stated, this record is not "a subjective expression of opinion but an objective report of . . . facts." OAG 80-596, p. 3. In light of the rule of construction, codified at KRS 61.871, that the exceptions are to be strictly construed and thus given no greater application than is necessary to effectuate their purposes, we find that the Department's reliance on KRS 61.878(1)(j) was misplaced.
Whether the disputed record is excluded from public inspection by KRS 61.878(1)(i) is a closer question. That exception authorizes the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency [.]
It is apparent that the unclaimed property list cannot be characterized as correspondence with a private individual. Thus, in order to qualify for exclusion, the list must be characterized as a preliminary draft or note.
In an early open records opinion, this office observed:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)[(i)]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
OAG 78-626, p. 2. Resolution of this appeal turns on the issue of whether the disputed list is a work paper because it is a preliminary draft or note. The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary 402 (1988). The term note is defined as "a brief record, esp. one written down to aid the memory." Id. at 804 . In our view, the lost and abandoned property list posted at the Kentucky State Fair does not qualify as either a draft or a note.
Clearly, the list is not a note. It was not created as an aid to memory or as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9 (KRS 61.878(1)(j) is "intended to protect random notations made by individuals present at a meeting"). By the Department's own admission, the list reflected accounts that remained unclaimed at the time it was generated, and was complete and accurate as of that date.
Nor is the list a draft. It does not represent a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, or 94-ORD-38. Although the Department indicates that new accounts are added as reported (and, we assume, deleted as property is claimed), its argument that the list is preliminary is premised on the fact that on the date Ms. Hines's request was made, it had not had an opportunity to issue notice to the owners of unclaimed property as required by KRS 393.110 (2). This is simply not an adequate basis for denying access to a public record. Presumably, the list is constantly changing as new entries are added as reported and old entries deleted as property is claimed. If we accept the Department's reasoning, we must conclude that the record never becomes final.
We believe that the better practice is to treat the list, or the database from which it is generated, as an open record which is subject to inspection at all times. The information which appears in the list, or database, is required to be posted and published by the sheriff of the county where the property is located or held. KRS 393.110(1)(d). The information must be communicated by the Department through written notice to the owners of unclaimed property the value of which exceeds $ 100. KRS 393.110(2). Although there is no statutory requirement that it do so, the Department posts the information at the Kentucky State Fair "as a vehicle to locate owners of unclaimed property. " To suggest that Ms. Hines could have inspected the record at the Fair, but cannot now have access to it through the mechanism of an open records request, is unreasonable.
If the information contained in the database is of a sufficiently final nature at certain times to be made public, we see no reason why the information should be treated as preliminary at all other times. The most effective vehicle to locate owners of unclaimed property is to place the record in the public domain, thus enabling ordinary claimants as well as commercial finders the opportunity to freely and openly examine it.
"Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994); OAG 82-233; OAG 89-76 ("The exemption of KRS 61.878(1) may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection" ). The fact that Ms. Hines could, if she wished, "get the jump" on the Department, or other commercial finders, in locating the owners of unclaimed property simply has no bearing on the resolution of this appeal. Nor does the fact that the list may contain inaccuracies. Disclosure of public records under the Open Records Act does not constitute a guaranty of the accuracy of all information contained therein.
Ms. Hines requested access to the print-out used at the Kentucky State Fair reflecting lost and abandoned property reports through April 3, 1997. Although the Department indicates that the April 3 print-out was discarded after the State Fair, three pages of the print-out were furnished to this office to facilitate our review of this appeal. We therefore assume that the print-out was not discarded. If it was not discarded, the Department should make immediate arrangements for Ms. Hines to inspect the print-out. If the April 3 print-out was discarded, the Department should make every effort to accommodate Ms. Hines to insure that she is afforded access to the records she seeks.
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.