Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Economic Development violated the Open Records Act in its disposition of Alan D. Blincoe's two separate requests, dated June 5, 2003, in which he requested identical type records relating to Brett Barnes, Sr., and James Navolio, two employees of the Department of Business Development, Cabinet for Economic Development. Because these matters have been presented to the Attorney General in two separate appeals but present identical questions of law, the two appeals are consolidated for purposes of adjudication under KRS 61.880(2). For the reasons that follow, we conclude that the Cabinet's responses were consistent in part and inconsistent in part with the Open Records Act.
In each separate request, Mr. Blincoe submitted the following records request to each of the two named employees, asking for:
[A] copy of your travel itinerary and meeting schedule from February 24, 2003 until the present, relating to my client, Cecil Saydah Co. and/or its subsidiaries.
In addition, I am requesting copies of your telephone logs and/or calls and or e-mail transmissions, both in-coming and out-going, to or from my client Cecil Saydah Co. and/or its subsidiaries.
Specifically, I am requesting the dates and times you met with, spoke to or communicated with Cecil Saydah executives Harold Schierholt and Rich Vetter as well as Louisville Saydah executive, Jeff Blain.
By separate letters, dated June 6, 2003, Catherine C. Staib, Staff Attorney, responded to each of Mr. Blincoe's requests. In each letter, Ms. Staib stated:
You have signed your letter as an "Agent For Cecil Saydah Co." I have been told that you no longer are an agent for that company. Therefore, please either resubmit your letter in your personal capacity or provide current documentation for my files that indicates that you have a continuing representative relationship with Cecil Saydah Co.
As soon as I have this information, I will begin processing your request consistent with the requirements of the applicable statutes.
By letter dated June 10, 2003, Ms. Staib provided Mr. Blincoe with a substantive response to his requests. In her response, Ms. Staib advised, in relevant part:
Because of questions relating to your representation that you and the company have a continuing client/broker relationship, by letter from me dated June 6, 2003, you were requested to either document your existing relationship with the company or resubmit your open records request deleting references to the company as your "client."
On June 9, 2003, you informed me by telephone that you would not comply with the request and implied that Cecil Saydah, Co. remained your client. According to the company, you may be mistaken in this belief. However, we are responding to your open records request as if it had been made by you as an individual and not in any client relationship with Cecil Saydah, Co., deleting the modifier "my client" from references to the company in your letter.
You have requested the travel itinerary and meeting schedules of both Mr. Navolio and Mr. Barnes from February 24, 2003 until the present relating to the company or its subsidiaries. The Cabinet does keep itineraries (which would include scheduled meetings) for these two employees. However, such documents are exempt from production under KRS 61.878(1)(i) which exempts "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " See also, Courier-Journal v. Jones, Ky.App., 895 S.W.2d 6 (1995).
You have requested "copies of telephone logs and/or calls." Neither Mr. Navolio nor Mr. Barnes keeps telephone or call logs. Therefore, no such documents exist that meet your request.
You have requested "e-mail transmissions, both in-coming and out-going," to or from the company and/or its subsidiaries. Mr. Navolio is currently out of the country. He left on June 4, 2003, and will not return to the office until at least June 13, 2003. Although I have learned that he does not have a file for this company and, therefore, has no e-mail records in such a file, I can not ascertain whether he otherwise has e-mail documents that are consistent with your request until he returns to the country. A response to this request should be made no later than June 16, 2003.
Mr. Barnes does have records of e-mail transmissions to and from the company. E-mail transmissions are subject to the Open Records Act, including the statutory exemptions thereto. A review of these e-mails indicates that they are exempt from production under the exception set forth above as well as KRS 61.878(1)(j) which exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
You further state that you are "requesting the dates and times you met with, spoke to, or communicated with Cecil Saydah executives Harold Schierholt and Rich Vetter as well as Louisville Saydah" from both Mr. Navolio and Mr. Barnes. As to Mr. Barnes, no document exists which provides a compilation of the information you have requested. Because of Mr. Navolio's absence, as noted above, I do not know whether he has such a record. A response to this request should be made no later than June 16, 2003.
By follow-up letter dated June 13, 2003, Ms. Staib provided Mr. Blincoe with the following additional information:
Mr. Navolio has no e-mails to or from Cecil Saydah Co. and himself.
Mr. Navolio has no record that fills your request of dates and times he may have "met with, spoke to, or communicated with Cecil Saydah executives Harold Schierholt and Rich Vetter as well as Louisville Saydah."
In a letter to this office, dated June 17, 2003, Mr. Blincoe stated, in part:
My records indicate that Mr. Naviolio had telephone contact with my client Cecil Saydah Co., most likely Rich Vetter, on Wednesday, May 14, 2003. Regardless of Mr. Naviolio's assertions to the contrary, there must be a record of long distance calls from his telephone number to my client in Los Angeles on or about the date of May 14, 200[3]. (Mr. Vetter acknowledged that he had had such a conversation with Mr. Navolio.)
We are asked to determine whether the responses of the Cabinet violated the Open Records Act. For the reasons that follow, we find that the Cabinet's responses were consistent in part and inconsistent in part with the Act.
Travel itineraries and meeting schedules.
KRS 61.878(1)(i) 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.
This office, and the courts, have recognized that a public official's appointment schedule may be excluded from public inspection pursuant to KRS 61.878(1)(i). See 93-ORD-25; OAG 78-626; Courier-Journal v. Jones, Ky.App., 895 S.W.2d 6 (1995).
In Courier-Journal v. Jones, the Court of Appeals concluded that an appointment schedule is "nothing more than a draft of what may or may never take place; a notation for inter or intra office use . . . ," and thus exempt pursuant to KRS 61.878(1)(i).
In OAG 78-626, this office held that the Mayor of Louisville's appointment calendar could properly be withheld from disclosure under authority of what is now codified as KRS 61.878(1)(i). In reaching this conclusion, we stated:
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. We believe that the Mayor's appointment calendar is of such a nature.
OAG 78-626 at p. 2.
In OAG 84-342, we held that a public official's calendar and his secretary's calendar were exempt from disclosure under authority of what is now codified as KRS 61.878(1)(a), (i) and (j) and OAG 78-626.
We are bound by the Court's decision in Courier-Journal v. Jones, supra, and prior decisions of this office that travel itineraries and meeting schedules, are akin to preliminary workpapers, and exempt from disclosure under KRS 61.878(1)(i). 93-ORD-36; 93-ORD-25; OAG 84-342; and OAG 78-626. Accordingly, we find that the Cabinet's response in this regard did not violate the Act.
Telephone or call logs.
In response to Mr. Blincoe's requests for copies of Mr. Navolio's and Mr. Barnes's telephone logs or call logs, the Cabinet advised that "no such documents exist" that met that request. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this response.
However, this office has held that telephone records of a public agency are public records. If the public agency maintains a phone log of public agency calls or billing records of agency calls, then that record would be open to public disclosure, unless the agency can articulate a specific statutory basis for redacting individual entries on the phone log or billing record. In OAG 86-21, with specific reference to telephone billing records, we observed:
. . . Involved here are the telephone numbers of unnamed individuals, groups or companies who have been called, presumably by public officials, on telephones purchased or leased by a public agency with public funds. Since public officials or employees are calling on telephones of a public agency at the public's expense it is presumed, or at least it is hoped, that some kind of public business is being conducted or some kind of public service is being rendered.
While it is true that it should not be too difficult to ascertain what person, group or business has been called by the public agency once the telephone number has been obtained, it seems to us that this is a price that must be paid by citizens and residents in a free and democratic society. As a general proposition the public's business must be conducted in public. If a person has been called by a public agency he may have either requested something of the public agency or he may have done something affecting the public.
OAG 86-21, p. 3, 4.
Nevertheless, we also recognized in OAG 86-21 that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential." Continuing, we noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted material, the agency must provide particularized justification for the partial nondisclosure.
Accordingly, if the Cabinet maintains a Cabinet phone log or billing records of agency calls, those records would be available for Mr. Blincoe's inspection, unless particular numbers or calls are subject to nondisclosure under one or more of the applicable exceptions to disclosure under KRS 61.878(1). Mr. Blincoe must identify with reasonable particularity the period of time of the telephone records, so that they may be made available for his inspection.
E-mail transmissions.
In response to Mr. Blincoe's requests for copies of e-mail transmissions of Mr. Navolio and Mr. Barnes, both incoming and outgoing, to and from Cecil Saydah Co., the Cabinet advised that Mr. Navolio had no such records and that Mr. Barnes did have records of such requested e-mail transmissions, but they were exempt from disclosure under KRS 61.878(1)(i) and (j).
Addressing first the request for Mr. Navolio's e-mails, the Cabinet discharged its duty under the Open Records Act by affirmatively advising Mr. Blincoe that no such records existed. 99-ORD-98; 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this response.
In denying the request for Mr. Barnes's e-mails, the Cabinet stated that its review of the e-mails indicated the records were exempt from disclosure under authority of KRS 61.878(1)(i) and (j) because they constituted preliminary documents. In its blanket denial, the Cabinet merely recited the language of the exemptions.
KRS 61.880(1) provides, in relevant part, that:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In Edmondson v Alig, Ky.App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act - much less . . . amount [] to substantial compliance.
Id. at 858 (emphasis added).
Thus, a public agency has a burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document(s) withheld. KRS 61.880(1). It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the particular records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154; 93-ORD-67. Accordingly, the Cabinet must either provide Mr. Blincoe with a brief explanation of how the cited exceptions apply to the records withheld or make the records available for inspection.
We do not suggest that the Cabinet's reliance on KRS 61.878(1)(i) and (j) was completely misplaced, only that it failed to provide sufficiently particular and detailed information to satisfy the requirements of KRS 61.880(1) in its denial of Mr. Blincoe's request.
Finally, in response to Mr. Blincoe's request for "dates and times you met with, spoke to or communicated with Cecil Saydah executives Harold Schierholt and Rich Vetter as well as Louisville Saydah executive, Jeff Blain," the Cabinet advised Mr. Blincoe that it had no documents that met the parameters of this request. The Cabinet discharged its duty under the Open Records Act by affirmatively advising Mr. Blincoe that no such records existed. 99-ORD-98; 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this response.
Moreover, this office has long recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for records. See, for example, 99-ORD-17 and authorities cited therein. The request for the "dates and times" is more in the nature of a request for information than for specifically described records.
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.
Alan C. Blincoe7807 New LaGrange Road, Suite ALouisville, KY 40222
James Navolio, CommissionerDept. of Business DevelopmentCabinet for Economic Development500 Mero StreetCapital Plaza TowerFrankfort, KY 40601
Brett BarnesSr. Project ManagerDept. of Business DevelopmentCabinet for Economic Development500 Mero StreetCapital Plaza TowerFrankfort, KY 40601
Catherine C. Staib, Staff Attorney Cabinet for Economic Development500 Mero StreetCapital Plaza TowerFrankfort, KY 40601