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 the Workforce Development Cabinet's Department for Employment Services violated the Open Records Act in the disposition of Artis Anderson's March 28, 2003 request for:
1. A copy of all of the questions propounded to the parties at the referee hearing [on the denial of Mr. Anderson's claim for unemployment insurance benefits] held in Somerset, Kentucky, on the 24th day of March, 2003; the answers as noted and recorded in writing by the referee; and
2. Any and all other notes, notations, or other records generated by the referee at the hearing and recorded in writing.
For the reasons that follow, we affirm DES's disposition of Mr. Anderson's request.
Shortly after receiving his request, DES provided Mr. Anderson with a copy of the audiotape recording of the referee's hearing. Dissatisfied with the quality of that tape, Mr. Anderson contacted Commissioner James F. Thompson to voice his objections and to request an explanation for DES's failure to produce "notes and writings" generated by the referee in the course of the hearing. On April 25, Commissioner Thompson responded:
While unemployment insurance records are not generally subject to disclosure pursuant to Open Records law, all documentation pertinent to your hearing was provided to you per your request to the Appeals Branch. "Notes, writings, etc." that you request in your letter are non-existent. Notes taken by the referee are used for the sole purpose of writing the decision and they do not become a part of the file. Since these notes are not included in the claim file, they are destroyed once the referee's decision is released.
On April 28, 2003, Mr. Anderson initiated this appeal to the Attorney General asserting that because the tape recording of the hearing "is inaudible in large part" and the referee's notes from the hearing have apparently been destroyed, there is no record of the hearing in contravention of applicable state law.
In supplemental correspondence directed to this office following commencement of Mr. Anderson's appeal, Cabinet for Workforce Development General Counsel E. Jeffrey Mosley elaborated on DES's position. With reference to the audiotape of the referee's hearing, Mr. Mosley advised:
[I]f the gravaman of Mr. Anderson's appeal is that he desires an ability to review the testimony of the proceeding, then the Department can accommodate Mr. Anderson. This office has contacted the Department and confirmed that the tape of the proceeding that is in their possession is audible and can be re-copied or reviewed at Mr. Anderson's convenience in Frankfort.
He noted that 787 KAR 1:110 Section 4(6) requires the requesting party to furnish a blank cassette tape to DES to secure a duplicate of the recording of testimony made at the hearing, and that in all likelihood the poor quality of the recording was a function of the poor quality of the blank cassette tape Mr. Anderson submitted. Mr. Mosley proposed that Mr. Anderson submit a better quality tape or, alternatively, listen to the tape at his convenience at the Department's offices.
With reference to the referee's notes, Mr. Mosley asserted that these notes were discarded, per the referee's routine practice, after her opinion was drafted and therefore could not be produced. Even if those notes existed, he observed, they would qualify for exclusion from public inspection on the basis of KRS 61.878(1)(i) and (j) as construed in OAG 78-816. On these bases, Mr. Mosley urged the Attorney General to affirm DES's position. Having considered the arguments advanced by the parties, and restricting our analysis to the records access issues Mr. Anderson raises, we affirm.
We find no error in DES's disposition of Mr. Anderson's request for a duplicate of the recording of testimony made at his March 24 hearing. DES furnished Mr. Anderson with a duplicate of the recording in a manner consistent with 787 KAR 1:110 Section 4(6), and has agreed to furnish him with a second duplicate upon submission of a better quality tape that will better capture the testimony at the hearing. Alternatively, DES extended an offer to Mr. Anderson to conduct an on-site "inspection" of the tape and to listen to the original at DES's offices and at a time convenient to Mr. Anderson. This is not a case where the original record is illegible, or in this case inaudible, due to the agency's use of faulty copying equipment. Compare, 98-ORD-161. Instead, it is a case where the original recording is legible/audible, and the agency has agreed to facilitate the requester's access by providing him with a second copy of the recording upon submission of a better quality tape or by affording him the opportunity to listen to the original in its offices. The Open Records Act requires DES to do no more.
By the same token, we find that DES fully discharged its duties relative to Mr. Anderson's request for the referee's notes by advising him that those notes were destroyed after the referee prepared the decision. 01-ORD-38 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms"). The Cabinet's records retention schedule does not mandate retention of such notes and we have confirmed with a representative of the Department for Libraries and Archives Public Records Division that destruction of handwritten notes by a hearing referee after a decision is prepared and released is consistent with sound records management practices. 1 Moreover, as Mr. Mosley correctly observes, if those notes still existed they would qualify for exclusion under KRS 61.878(1)(i) , 2 as construed in the oft-cited OAG 78-626. At page 2 of that opinion, the Attorney General 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)(g) [now (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.
With respect to public records protected by KRS 61.878(1)(i), "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, 578 (1994). Again, we find no error in DES's disposition of this portion of Mr. Anderson's request.
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.
Artis AndersonP.O. Box 347Nancy, KY 42544
James F. Thompson, CommissionerWorkforce Development CabinetDept. for Employment Services275 East Main Street, 2WBFrankfort, KY 40621
E. Jeffrey MosleyOffice of General CounselWorkforce Development CabinetCapital Plaza Tower, 2nd Floor500 Mero StreetFrankfort, KY 40601
Footnotes
Footnotes
1 See KRS 61.8715, recognizing an "essential relationship" between effective records management, under Chapter 171 of the Kentucky Revised Statutes, and records access, under KRS 61.870, et seq.
2 KRS 61.878(1)(i) authorizes nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspon-dence which is intended to give notice of final action of a public agency.