Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Sanitation District No. 1 properly relied on KRS 61.878(1)(i) and (j) in denying Kentucky Post reporter Crystal Harden's March 22, 2000, request to inspect "the report prepared by Burton & Associates and submitted to the District on possible rate increases." Although The Post acknowledges that the issue of access was effectively mooted by disclosure of the report prior to the initiation of this appeal, Assistant Managing Editor Mark Neikirk nevertheless urged us to consider the issue of timely disclosure of the report in light of the "day-to-day practical concern with very real consequences for what the public knows and when." Given the broad public interest in this issue, we exercise the discretion granted us by KAR 1:030 Section 6 in favor of furnishing a decision in this appeal.
In denying Ms. Harden's March 22 request, Henry L. Stephens, Jr., an attorney representing the District, explained that the "draft report contains preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated and recommended concerning proposed rate increases the Board of Directors of Sanitation District No. 1 may wish to implement." It was the District's position that "until such time as the draft report is adopted by the Board of Directors of Sanitation District No. 1, and thereby becomes a final report, public access to this document is precluded pursuant to [KRS 61.878(1)(i) and (j)]."
In a supplemental response directed to this office following commencement of this appeal, Mr. Stephens elaborated on the District's position. He noted that Mr. Neikirk's appeal:
Recognizes that this report was preliminary as he characterizes that its purpose "was to review rate increase options for the Sanitation District." However, the "options" disclosed in such report had not been delivered to, viewed by, considered by or in any way discussed by the Board of Directors of Sanitation District No. 1 until after the March 23, 2000, meeting of the Board convened at 4:00 p.m.
(Emphasis in original.) Continuing, Mr. Stephens indicated that at the March 23 meeting, the Board "considered the draft report prepared by Burton & Associates, discussed the options and policies formulated therein, voted to accept the report and, after due deliberation and discussion, voted to preliminarily approve one of the recommended rate increase options contained in the report." On the same day, and after approval of the report, Mr. Stephens released a copy to The Post .
In rebuttal, The Kentucky Post's attorney, Mark Guilfoyle, asserted that the report did not qualify for exclusion under either KRS 61.878(1)(i) or (j) at the time of Ms. Harden's request. He challenged the District's characterization of the report as a "draft work-in-progress," observing:
The report submitted to the Board of Directors was a final report of Burton & Associates. The consultant was not expected to do any further work, and the Board of Directors duly considered the report one hour after it was allegedly submitted for the first time . . . The Sanitation District cannot seriously dispute that when the bound, several-inches-thick report was submitted to the Board of Directors on March 23, it was the final work product of Burton & Associates.
Relying on 93-ORD-125, which recognized that a "notation which appears on the document designating it a 'Draft' is not dispositive," and 98-ORD-7, which defined a preliminary draft as a "tentative version, sketch, or outline or a formal and final written product," he maintained that the Burton & Associates report "simply does not meet [the latter] definition."
Mr. Guilfoyle also attempted to dismantle the District's argument that the report contains preliminary recommendations or is a preliminary memorandum in which opinions are expressed or policies formulated or recommended. He proposed that this office examine the propriety of the District's reliance on KRS 61.878(1)(j) using an "analytical framework . . . grounded in a strict construction of the (j) exemption and accounting for the express bias in favor of openness" rather than the liberal interpretation of the exemption commonly employed by public agencies that is grounded in the presumption that " any document that temporally comes before some decision by a public agency is deemed covered by the . . . exemption. " (Emphasis in original.) It was his position that a document does not qualify for exclusion under KRS 61.878(1)(j) unless:
1. it is created by an employee of a public agency;
Mr. Guilfoyle argued that the report satisfies none of these criteria.
Because the report was not prepared by a District employee, Mr. Guilfoyle asserted, it did not enjoy KRS 61.878(1)(j) protection. He explained:
The exemption is designed to ensure that staff members are not chilled from expressing opinions or recommendations on an intra-or inter-agency basis. The exemption protects the decision-making process of the public agency. Thus, while the exemption is designed to protect the work of Sanitation District employees, who are paid by the Sanitation District and whose livelihood depends on continued employment by the Sanitation District, the same cannot be said of Burton & Associates. The consultant was hired for a specific project. Once the project was over, the consultant submitted a report. At that point, the consultant's work for the Sanitation District came to an end.
In short, . . . the outsideconsultant cannot be "chilled." A consultant's livelihood depends on providing a client with comprehensive, accurate, and responsive material.
In Mr. Guilfoyle's view, the Attorney General has consistently and erroneously regarded outside consulting firms as public agencies within the scope and meaning of KRS 61.870(1) (a)-(l) when " none of the entities enumerated in this definitional section covers private outside consulting agencies, such as Burton & Associates." (Emphasis in original.)
Mr. Guilfoyle next attempted to semantically distinguish the Burton & Associates report, containing a list of "options" for the Sanitation District to consider, from a preliminary recommendation or a preliminary memorandum in which opinions are expressed or policies formulated or recommended. "It is a long and impermissible stretch," he maintained, "to equate a list of 'options' with 'recommendations, ' 'opinions,' or 'policy formulations.'" Mr. Guilfoyle questioned the District's position that a preliminary report forfeits its preliminary status upon agency acceptance, characterizing the position as "merely an artifice designed to delay disclosure" insofar as "the Sanitation District 'accepts' the report when it is delivered to its agents or employees." He also attempted to distinguish "the only case law supporting the 'acceptance' of a document," namely, University of Kentucky v. Courier-Journal and Louisville Times Co., Ky. 830 S.W.2d 373, 378 (1992), in which the Supreme Court held that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." Mr. Guilfoyle argued that there is no parallel case involving an outside consultant's report, and thus "no basis in the Open Records Act for this position."
Finally, Mr. Guilfoyle urged the Attorney General to extend the "balancing of interests" analysis, established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) for determining the propriety of an agency's reliance on KRS 61.878(1)(a), the privacy exemption, to appeals involving an agency's reliance on KRS 61.878(1)(j). It was his position that the Kentucky Court of Appeals gave its imprimatur to this analysis in the context of denials based on KRS 61.878(1)(j) in Courier-Journal and Louisville Times Co. v. Jones, Ky., 895 S.W.2d 6 (1995), by citing with approval Times Mirror Co. v. Superior Court of Sacramento, 53 Cal. 3d 1325 (1991) in which a similar test was applied to a preliminary record. Applying the balancing of interest test in the instant appeal, Mr. Guilfoyle concluded that "the balance in this case tips in favor of disclosure. "
We have carefully considered each of the arguments advanced by The Kentucky Post in support of its position, as well as the position articulated by Sanitation District No. 1, mirroring some twenty years of open records law. The vehemence with which The Post asserts its position notwithstanding, we are not persuaded that this line of judicial and administrative interpretation of the Open Records Law was fallacious, or that any recent amendment to, or judicial gloss of, the exemptions codified at KRS 61.878(1)(i) and (j) compel us to depart from the traditional view. Because we believe that the report qualified for exclusion under authority of KRS 61.878(1)(j) as a document containing preliminary recommendations, we do not address the question of the propriety of the District's reliance on KRS 61.878(1)(i) as an additional basis for denying access.
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Board of Examiners of Psychologists above at 327 that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended. " KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham , that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
Guided by these principles, as well as an evolving body of case law, the Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only after they are adopted by the agency as part of its final action. City of Louisville v. Courier-Journal and Louisville Time , Ky. App., 637 S.W.2d 2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992). Contrary to the views expressed by The Kentucky Post , it is not the latter case alone that establishes this rule of law in relation to preliminary records, but the other published decisions of the court cited above, along with a large body of open records decisions of the Attorney General adopting the rule.
These open records decisions reflect the Attorney General's commitment to implement the intent of the General Assembly in carving out these exemptions. This office has frequently noted that KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency. See, e.g., 94-ORD-118 and 93-ORD-125.
On numerous occasions, this logic has been extended to reports and analyses prepared by outside agencies, as well as consultants, on behalf of a public agency. These decisions are summarized in 93-ORD-125, affirming the Transit Authority of River City's denial of a request for a Coopers & Lybrand report, evaluating the performance of Yellow Enterprise under its agreement with TARC, as a preliminary record upon which final action had not been taken. At pages 6 and 7, we recounted:
In OAG 82-450, we held that a "Development Potential Analysis" prepared for Jefferson County by the Real Estate Research Corporation was exempt from public inspection under KRS 61.878(1)(j). At page 2 of that opinion we held:
Similarly, in OAG 84-337, we held that a completed report of SRI International of Menlo Park, California, on plans for future economic development in Louisville was excluded from public inspection because it contained opinion and recommendations which the public agency could accept or disregard in taking final action. In OAG 85-96, we reached the same conclusion, holding that a feasibility report on the construction of a high-rise office building prepared by Coldwell Realty under a contract with the City of Louisville could properly be withheld pursuant to KRS 61.878(1)(j) since it was preliminary in nature, "setting forth opinions and recommendations for review and consideration by the city." OAG 85-96, at p. 3. Finally, in OAG 88-60, we held that a public official properly denied a request to inspect a draft audit prepared by the E.P.A. and sent to the City of Owensboro, pursuant to KRS 61.878(1)(i) and (j), insofar as the audit was a preliminary report containing opinions and observations.
With specific reference to the question before us in 93-ORD-125, we observed:
Contrary to [the Appellant's] assertion that the courts and this office have applied these exceptions only to internal preliminary investigative materials, this Office has recognized that the rationale underlying the exceptions is equally compelling regardless of whether the communications are within an agency or between agencies. While we acknowledge that the exceptions to the Open Records Law must be strictly construed to facilitate the widest possible dissemination of public records, we believe that [the appellant's] construction of KRS 61.878(1)[(i)] and [(j)] is unduly narrow, and inconsistent with a long line of opinions issued by this Office.
We also reject [the appellant's] assertion that the record cannot be characterized as "preliminary" because "there is no indication that Coopers & Lybrand intends to do any further work on the report. . . ." In OAG 90-97, we observed that the fact that the recommendations made, or memoranda prepared, are final as to the person making or preparing them is irrelevant. Most recommendations and memoranda are final in the sense that the person making or preparing them does not intend to make or prepare subsequent recommendations or memoranda. "The word 'preliminary' as used in KRS 61.878(1)[(j)] obviously refers to recommendations made [and memoranda prepared] by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation [or memorandum] is the first, second or last recommendation [or memorandum] if the state agency has not yet taken final action. " OAG 90-97, at p. 4. See also, OAG 82-450, at p. 2.
93-ORD-125, p. 7, 8.
Since this decision was issued, the Attorney General has applied the reasoning contained therein to a report prepared by a private attorney retained by the City of Louisville evaluating the Louisville Policemen's Retirement Fund and submitting recommendations (96-ORD-38); a study prepared by an outside consultant hired by the Hardin County Schools examining the organizational and pay structure of administrators, classified staff, and teachers (96-ORD-121 and 96-ORD-122); an analysis prepared by a private corporation under contract with the Transportation Cabinet evaluating alternatives for the design of a connector road (98-ORD-70); and a presidential performance review prepared by an outside consultant for Kentucky State University (00-ORD-46). Although each of these reports was final as to the private consultant, the record in each appeal, save one, was devoid of evidence that the reports had been incorporated into final agency action. Thus, we continue to ascribe to the view that KSR 61.878(1)(j) authorizes nondisclosure of preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended until they are incorporated into final agency action, notwithstanding the fact that they are prepared for the agency by outside agencies or private consultants. Barring an amendment to KRS 61.878(1)(j), or a published decision of the Court of Appeals or Supreme Court, we see no compelling reason to depart from our position.
We do not find the arguments advanced by The Kentucky Post in opposition to 93-ORD-125, and its progeny, persuasive. As in 93-ORD-125, we find that The Post's construction of KRS 61.878(1)(j) is unduly narrow, and that the analytical frame work it proposes for determining the propriety of an agency's reliance on the exemption is not supported by the language of the exemption, or the cases construing it.
We reject The Post's argument that KRS 61.878(1)(j) only applies to preliminary records created by an employee of the public agency, and thus excludes preliminary records generated by a hired consultant because outside consulting firms are not named as public agencies in KRS 61.870(1)(a) through (l). Recent history teaches us that this is a perilous position. In 00-ORD-46, Kentucky State University asserted that its outside consultant's report on the president's performance was not a public record because the report was orally transmitted to the Board of Regents, and a copy not retained by the agency. On this basis, the University maintained, the 84-page report, prepared at a cost of $ 13,000 to the University, was not a public record, but was instead the property of the private consultant who was free to destroy it at will. The Attorney General rejected this position, reasoning that the report was "a public record in the custody of a consultant under a personal service contract with a public agency, " and that this contractual relationship established a sufficient nexus to bring the report within the scope of KRS 61.870(2). Taken to its logical conclusion, The Post's argument would enable public agencies to avoid disclosure of an outside consultant's report by receiving the report orally, or by returning all copies of the report to the consultant for disposition as the consultant saw fit.
We find that The Post's attempt to distinguish a preliminary report containing a list of options from a preliminary recommendation or a preliminary memorandum in which opinions are expressed or policies formulated is equally unpersuasive. In our view, it represents a semantic distinction with virtually no difference. Webster's New World Dictionary defines the term "option" as "something that is or can be chosen; choice," and the term "recommendation" as "recommending or calling attention to, a person or thing as suited to some purpose." Both involve the presentation and assessment of alternatives and anticipate the adoption of one, and rejection of the remaining, alternatives. To hold otherwise would be to elevate form over substance. We judge the propriety of the agency's denial based not on the labels it uses, but on the underlying nature of the records at issue. The fact that Burton & Associates labeled the recommendations contained in its report "options" therefore does not alter our analysis under KRS 61.878(1)(j).
Finally, although we acknowledge that the Court of Appeals applied a balancing of interests analysis to a denial based on KRS 61.878(1)(j) in Courier-Journal v. Jones , above, we remind The Post that this analysis is a double-edged sword. Thus, in Jones the court concluded that the public interest in disclosure was clearly outweighed by the Governor's interest in the nondisclosure of his appointment calendar. Assuming as we must, based on the Jones decision, that the balancing of interest analysis, originally developed in the context of appeals arising under the privacy exception, can be extended to appeals arising under the preliminary documents exceptions, we leave such "subtle interpretations" of KRS 61.878 (1)(j) to the courts, the legislature having clearly established that with respect to certain records, the public's right to know is subservient to the need for governmental confidentiality. OAG 80-54, p. 3.
Clearly, the public agency itself can engage in its own balancing of interests relative to a decision whether to affirmatively exercise its option to deny access to a preliminary record or release the otherwise exempt preliminary record. In an early open records opinion, the Attorney General recognized that "the custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided by KRS 61.878(1)[(k) and (l)] (public records or information the disclosure of which is prohibited by federal law or regulation, and public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly)." OAG 79-275, p. 1. This opinion was premised on the notion that "the exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. " OAG 79-275, p. 3. In support of this position, we noted that the Open Records Act provides no penalty for releasing exempted documents.
Although we made no reference to the legislative impetus for enactment of an Open Records Act in OAG 79-275, it is clear that the primary impetus was the recognized need to insure public agency accountability by establishing a statutory right of access to public records, and not to thwart access by requiring public agencies to withhold exempt records which they were otherwise inclined to release. In enacting this statutory scheme, the legislature did not intend to tighten an agency's grip on public records, thereby making it more difficult to gain access. Broader rights of access, rather than more restrictive rights of access, are the goal, and the means of achieving this goal is the fullest responsible disclosure.
When discretionary release of otherwise exempt records implicates privacy concerns, public agencies should exercise their discretion with great care. Although Kentucky has no privacy act mandating nondisclosure of personal information maintained by governmental entities, our courts have evidenced a grave concern about "disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct." Zink v. Commonwealth , above at 829. Thus, when the only interest affected by disclosure is a governmental interest, public agencies can make discretionary disclosures. When, on the other hand, the interest affected by disclosure is a privacy interest, agencies should proceed with caution.
In the appeal before us, Sanitation District No. 1 exercised its discretion in favor of nondisclosure of the preliminary report prepared by Burton & Associates until that report was evaluated, discussed, and approved by the District. Pursuant to KRS 61.878(1)(j), the District was authorized to do so and we find no error in its decision to withhold the report until after it was adopted by formal action. For good or ill, the Open Records Act does not require that a public record be disclosed while the public "might still be able to influence the decision-making process" as The Post urges. Accordingly, we find that Sanitation District No. 1 did not impreperly deny The Kentucky Post's request, and that the Burton & Associates report forfeited its preliminary characterization and became an open record only after it was formally approved and adopted by the District.
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.