Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet properly relied on KRS 61.878(1)(i) in denying State Journal staff writer Dave Baker's March 9, 2000, request for "correspondence with Scan Optics concerning performance of contract, both received by the Cabinet and sent by the Cabinet." For the reasons that follow, and based on the authorities cited, we find that the Cabinet's reliance on the cited exception was misplaced, and that no legal basis exists for denying Mr. Baker's request.
In a response dated March 14, 2000, Finance and Administration Cabinet General Counsel Karen A. Powell advised Mr. Baker:
This correspondence consists of: 1) letters to Scan Optics from the Cabinet dated December 8, 1999, February 18, 2000, February 22, 2000, and March 2, 2000; 2) a letter from the Revenue Cabinet to Scan Optics dated October 7, 1999; and 3) a letter from Scan Optics to the Cabinet dated February 29, 2000. This correspondence is not being produced to you as it is preliminary correspondence with a private company exempt from disclosure under KRS 61.878(1)(h) [sic]. 1 See 99-ORD-120. This correspondence does not reflect any final action taken by the Cabinet.
This appeal followed. 2
In a supplemental response directed to this office, Ms. Powell elaborated on the Cabinet's position. She explained:
Mr. Baker apparently believes that because a contract has been awarded to Scan Optics, any correspondence with Scan Optics is not preliminary and not exempt from review. However, in OAG 85-148, the Attorney General agreed that although a contract existed between the Commonwealth and Bannum Enterprises, a letter from Bannum's President to Legal Counsel for the Finance Cabinet did not represent final action of a public agency and was merely correspondence with a private person. See also OAG 83-385.
On behalf of the Cabinet, she reaffirmed the position "that the documents requested constitute correspondence with a private individual not intended to give notice of final action of a public agency which are exempt from review pursuant to KRS 61.878(1)(i)." Based on this office's decision in OAG 90-7, and subsequent decisions affirming same, we cannot agree with the Cabinet's analysis of the applicability of KRS 61.878(1)(i) to the disputed documents.
In OAG 90-7, the Attorney General addressed a similar dispute involving access to correspondence between a private contractor and a public agency regarding administration of its contract with that agency. 3 There, we concluded that the agency improperly relied on KRS 61.878(1)(i), then codified as KRS 61.878(1)(g), in denying the public's right of access. At page 4, we explained:
KRS 446.015 provides, in substance, that words and phrases used in statutes are defined in accordance with common and everyday meanings. We believe "private individuals," in common and everyday meaning, means private human beings. Such phrase, would not, in common and everyday meaning, refer to a corporation. Nonetheless, we address the question here as if the phrase included a corporation.
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a "private individual," as such phrase is used in KRS 61.878(1)[(i)], that the contractor might be said to have, with administration of a governmental or public contract. Cf., Gertz v. Robert Welch, 418 U.S. 323, at 344, 94 S. Ct. 2997, at 3009 (1974).
Characterizing the disputed document as "a letter of a contractor under a public contract involving administration of that contract," 4 we concluded that "such correspondence may not be properly characterized as 'correspondence with a private individual' within the meaning of KRS 61.878(1)[(i)]." OAG 90-7, p. 4.
OAG 90-7 has been repeatedly affirmed over time, most recently in 99-ORD-220. 5 In that decision, the Attorney General held that the Kentucky Racing Commission improperly relied on KRS 61.878(1)(i) in denying a request for applications for racing licenses. We reasoned:
Although tendered by private entities or individuals, these applications cannot be considered "correspondence with private individuals," as contemplated by KRS 61.878(1)(i), because they are submitted with the expectation that the Racing Commission will rely upon them to take some action, either approval or denial of a license.
. . .
If a disputed record cannot be characterized as correspondence with a private individual, the question of whether final action has been taken by the agency becomes irrelevant. . . . Simply stated, we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if the first part of the analysis, requiring that the disputed record consist of correspondence, is not met. Such [a record] becomes an open record upon submission, and all or any portion of the [record] can properly be withheld only upon a showing by the agency that it qualifies for exclusion under one or more of the other exceptions to public inspection.
99-ORD-220, p. 7. Here, as in 99-ORD-220, the disputed documents cannot be characterized as correspondence with a private individual, and we therefore do not reach the second part of the analysis. 6 The correspondence became a public record upon issuance. The Cabinet having advanced no other argument in support of its denial of Mr. Baker's request, we find that the Open Records Act mandates immediate disclosure.
We believe that the reasoning of these decisions has a direct bearing on resolution of the issue in this appeal, and that they supercede the earlier open records decisions upon which the Cabinet relies. To the extent that OAG 83-385 and OAG 85-148 are inconsistent with the position taken here, they are modified accordingly. 7 The overwhelming weight of legal authority supports the view that correspondence from or to a contractor under a public contract on issues relating to the administration of that contract cannot be properly characterized as correspondence with a private individual, and such correspondence becomes an open record upon issuance. Disclosure is not contingent upon the occurrence of final agency action.
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.
Footnotes
Footnotes
1 Ms. Powell erroneously cited KRS 61.878(1)(h) as the statutory exemption authorizing 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. " This error was corrected in subsequent communications with this office.
2 Mr. Baker made additional requests for public records in his March 9 letter to the Cabinet, all of which were honored save one. Mr. Baker does not appeal the latter denial.
3 The letter at issue in OAG 90-7 was described as:
a two page letter dated April 18, 1989, written upon what we term Humana, Inc., letterhead. It is addressed to Thomas H. Lyons, Esquire, as University Counsel, and signed by Thomas Flynn, who is apparently a vice president and general counsel of Humana, Inc. The letter appears to express certain views of Humana of Virginia, Inc., regarding its contract with the University of Louisville for operation of Humana Hospital - University of Louisville. As such, the letter, despite being written over the signature of an individual human being, is, in our view, a letter of a corporate contractor under governmental contract, writing in regard to such contract.
4 The fact that most of the correspondence originated with the agency, and was directed to the corporation, and not the reverse as in OAG 90-7, does not alter our decision. The analysis remains the same regardless of who initiated the correspondence.
5 See, for example, OAG 90-142 (agency cannot rely on RKS 61.878(1)(i) in denying request for correspondence between licensee where agency relied on information contained therein in permitting applicant to take a licensure exam); OAG 91-99 (agency cannot rely on KRS 61.878(1)(i) in denying request for correspondence between itself and corporate contractor after contract awarded); OAG 92-44 (agency cannot rely on KRS 61.878(1)(i) in denying a request for letter sent to agency as part of accounting company's contractual obligation to perform an audit); 94-ORD-27 (agency cannot rely on KRS 61.878(1)(i) in denying request for correspondence from private provider that had contracted with state to operate correctional facility concerning issues relating to management of facility.
6 Pursuant to KRS 61.880(2)(c), the Cabinet furnished this office with copies of the disputed correspondence in order to facilitate our review. Although we cannot reveal the contents of the documents, they consist, in general, of written exchanges between the Commission and Secretary of the Finance and Administration Cabinet, the Deputy Secretary of the Revenue Cabinet, and the President of Scan Optics, Inc., identifying a number of problem in the administration of the contract and proposing remedial action, and the contractor's responses thereto. These documents were not disclosed to other parties, and have been destroyed in accordance with 40 KAR 1:030 Section 3.
7 We fail to see the relevance of 99-ORD-120 upon which the Cabinet also relies. That decision recognized the right of the Kentucky Labor Cabinet to withhold portions of an investigative file relating to the inspection of a fire protection district, including the complaint filed with the Cabinet, on the basis of KRS 61.878(1)(j) and (l), incorporating KRS 337.345 into the Open Records Act. The facts of that appeal, and the authorities relied upon, are in no way analogous to the appeal before us.