Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky Police Department properly relied on KRS 61.878(1)(i), (j), and (l), as well as KRS 447.154 in partially denying Braphus Kaalund's October 6, 2004, request for "any documents, memoranda, personal notes, or emails" between certain identified University administrative officials, including its General Counsel, regarding "the Student Activities Board, the so-called 'Referendum One' student initiative and/or any and all proceedings resulting from the so-called 'Referendum One' student ballot initiative. " For the reasons that follow, we find that, with the exception of one e-mail, the University properly relied on the cited statutory exemptions in denying the request on these bases.
By letter dated October 6, 2004, Mr. Kaalund, Student Senate President, submitted an open records request to Barbara Jones, General Counsel, University of Kentucky, requesting:
1. Any documents, memoranda, personal notes, or e-mails between (meaning as a recipient or sender) Patricia S. Terrill and any other person(s) regarding the Student Activities Board, the so-called "Referendum One" student ballot initiative, and/or any and all proceedings resulting from the so-called "Referendum One" student Ballot initiative.
In his numbered requests 2-5, Mr. Kaalund made identical requests for records involving University administrative officials Rhonda Strouse, Barbara Jones, Michael T. Nietzel, and Christopher L. Poore.
6. Copies of the professional calendar of Patricia S. Terrill for the dates between January 1, 2004 and October 5, 2004, to include all engagements or meetings attended by Dr. Terrill, specifically those regarding Student Activities Board, the so-called "Referendum One" student ballot initiative, and/or any and all proceedings resulting from the so-called "Referendum One" student Ballot initiative.
7. Any documents or memoranda from the University Budget Office regarding the Student Activities Board, the University Budget Office's statement(s) as to financial condition of the Student Activities Board, and/or the University Budget Office's statement(s) as to the recordkeeping practices of the Student Activities Board.
Responding to the request on behalf of the University, Frank Butler, Official Records Custodian, advised Mr. Kaalund in regards to requests number 1 - 5, that "personal notes" and "e-mails" of the identified individuals are exempt from disclosure pursuant to KRS 61.878(1)(a)(i) and (j). He further stated that each of the identified individuals had advised him that he or she had "no official records responsive to the request." In addition, as to request number 3 regarding records from the University's General Counsel, Mr. Butler advised:
Records in the possession of Barbara Jones in the Office of Legal Counsel, if in fact they exist, would be exempt from disclosure because they are protected by the attorney-client privilege pursuant to KRE 503 and KRS 61.878(1)(k) and (l). The application of the attorney-client privilege in the Open Records context is set out in Attorney General opinion 02-ORD-14.
In response to request number 6, regarding copies of the professional calendar of Patricia S. Terrill, Mr. Butler advised:
. . . they are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j). We rely on Attorney General opinions 93-ORD-25, 93-ORD-36, OAG 84-342 and OAG 78-626 and on Kentucky Court of Appeals decision in Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6, (1995), all of which relate to the exemption of such calendars because of their preliminary nature.
In response to request number 7, requesting records "from the University Budget Office regarding the Student Activities Board, the University Budget Office's statement(s) as to financial condition of the Student Activities Board, and/or the University Budget Office's statement(s) as to the recordkeeping practices of the Student Activities Board," Mr. Butler stated that he was "advised by Angie Martin, Vice President of Budget, Planning and Policy, that she knows of no records responsive to this request."
Following the University's response, Mr. Kaalund initiated the instant appeal. Specifically, he challenged the University's nondisclosure of the requested e-mails and personal notes.
After receipt of notification of the appeal and a copy of the letter of appeal, Barbara W. Jones, General Counsel, provided this office with a response to the issues raised in the appeal. Elaborating on the University's original response, Ms. Jones explained:
In order to file a proper response to the appeal some background information is necessary.
In the spring of each academic year, the University of Kentucky Student Government Association conducts a general election for its officers and senators. In addition to the election of officers, referenda may also be submitted to the student body for adoption or rejection. During the Spring 2004 Student Government Elections, a referendum co-sponsored by Mr. Kaalund as the College of Law Senator along with the Student Government Senate President, John Weis, was place on the ballot and was passed by a majority of the student voters. This referendum was referred to as "Referendum One" [hereafter the Referendum] .
A dispute arose about the propriety of the Referendum and by agreement of the relevant parties the dispute was presented to the Student Government Supreme Court. On April 22, 2004 the Student Government Supreme Court issued an opinion concluding that the Referendum was properly conducted and directed the parties to comply with its interpretation of the Referendum and its order.
On April 26, 2004 the Student Government Supreme Court, through its Chief Justice and an Associate Justice, wrote to Dr. Lee Todd, President of the University of Kentucky, advising him of the opinion and requesting his assistance to insure that the parties to the dispute comply with its opinion and order to implement the referendum. [Attachment C]. On April 30, 2004, Mr. Kaalund, as President of the Student Senate and Senator, wrote President Todd expressing his concern regarding the Student Activities Board [SAB] which was the focus of the Referendum, and regarding his support for the implementation of the Supreme Court opinion and order. [Attachment D].
President Todd referred the resolution of the matter to Dr. Patricia Terrell, the Vice President of Student Affairs. On September 29, 2004 Dr. Terrill issued an opinion to State Government President Rachel Watts and to Student Senate President Braphus Kaalund advising them that Supreme Court exceeded its jurisdiction because Student Government did not have jurisdiction over other registered student organizations and that the opinion and order of the Supreme Court was without authority. [Attachment E]. On October 19, 2004 Dr. Terrill confirmed once again that her opinion of the Referendum is final and that no further action on the matter would be taken. [Attachment F].
The email correspondence between the administrative officials who are charged with Student Affairs at the University of Kentucky and their General Counsel is the object of the request of Mr. Kaalund. Dr. Michael Nietzel is the University's Provost to whom Dr. Terrill reports. Ms. Rhonda Strouse is the Director of Student Activities, Leadership and Involvement, serves as the adviser to Student Government Association, and reports to Dr. Terrill. Ms. Barbara W. Jones is the General Counsel for the University. Mr. Chris Poore is the Student Media Advisor to the Kentucky Kernel and the Kentuckian Yearbook. These officials and their attorneys corresponded by email in order to make a decision in response to the letters sent by the Student Government Supreme Court and Student Senate President Kaalund to Dr. Todd. The email correspondence included preliminary interoffice and intra-office discussions on the matter that set forth opinions, observations and recommendations. In addition counsel participated in most if not all of the correspondence and provided legal advice as well as proposals. The final action was provided to Mr. Kaalund and others as shown if Attachments E and F.
The pre-decisional correspondence sought by Mr. Kaalund is exempted from disclosure so that public organizations can be assured of the integrity of their decision making processes. The correspondence does not reflect final action but reflects the deliberative process that falls within the statutory exemptions of the act. Preliminary discussions that do not reflect final action are preliminary in nature and exempt from disclosure. See OAG 91-23; 92-90; 92-112; 92-125; 92-ORD-1024; 99-ORD-55; 00-ORD-61. Finally, this correspondence includes discussions with and advice from counsel. This correspondence is not discoverable and is exempt from public inspection. KRS 447.154. See OAG 91-53; 91-108; 00-ORD-99.
There existed only one email that constituted correspondence with a Kentucky Kernel reporter and one of the officials identified in the request. That correspondence was an inquiry from the reporter to which the official responded in a preliminary manner. This preliminary correspondence with a private person is exempted from public disclosure under KRS 61.878(1)(i).
We are asked to determine whether the University's denial of access to the requested records violated the Open Records Act. For the reasons that follow, we conclude that the University's denial, with the exception of one e-mail, was proper and did not constitute a violation of the Act.
We address first the University's denial of the request for e-mails of the identified administrative officials. It is well-recognized that e-mail (electronic mail) generated by public agency officials or employees is a public record as defined in KRS 61.870(2), and is therefore subject to the Open Records Act. See 00-ORD-132, p. 7, citing 99-ORD-22, 99-ORD-206, and 00-ORD-16. And like any public record governed by the Open Records Act, email may be excluded from public inspection under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). As the Kentucky Supreme Court has observed:
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994).
KRS 61.878(1)(i) and (j), authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
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. 00-ORD-139;
City of Louisville v. Courier-Journal and Louisville Times, 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).
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. In 02-ORD-160, we stated:
Like any public record governed by the Open Records Act, e-mail may be excluded from public inspection under one or more of the exceptions codified at KRS 61.878(1)(a) through (l).
?
With specific reference to records generated by public agency employees in the discharge of their day-to-day administrative functions, the Attorney General has opined:
OAG 78-626, p. 2. Clearly, this line of reasoning extends to public records generated via a communications medium neither envisioned nor available in 1978, namely, electronic mail.
In
City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)] protect preliminary documents from public disclosure if they are not adopted as the basis of final agency action. This is the seminal decision on the preliminary documents exceptions. It is only where preliminary records are adopted as the basis of the agency's final action taken, the purpose for which KRS 61.878(1)(i) and (j) exist is no longer served, and the preliminary records forfeit their preliminary characterization and must be disclosed. 01-ORD-183.
The University explained the e-mail correspondence included preliminary interoffice and intra-office discussions on the Referendum matter that set forth opinions, observations and recommendations and the correspondence did not reflect final action but reflected the deliberative process that falls within the statutory exemptions of the act. Preliminary discussions that do not reflect final action are preliminary in nature and exempt from disclosure. As such, these records retain their preliminary character until such time as they are adopted and made a part of final agency action. Accordingly, we conclude that, because the e-mails were not adopted nor made a part of its final action, Dr. Terrell's decision, they retain their preliminary status. Accordingly, we conclude the University properly denied access to the requested e-mails on the basis of KRS 61.878(1)(i) and KRS 61.878(1)(j) .
Because we find the e-mails at issue were properly withheld from disclosure under KRS 61.878(1)(i) and (j), we need not address other bases for withholding access to those records. We do note that e-mails between the University's General Counsel, in her capacity as the agency's attorney and the other identified administrative officials, in which she provides legal advice relating to Referendum issue, would also be exempt under KRS 61.878(1)(l), KRS 447.154, KRE 503.
In its responses to requests number 1 - 5, the University advised Mr. Kaalund that it had no official records from the identified administrative officials responsive to the request; and in response to request number 7, the University advised that it had no records responsive to the request for records from the University Budget Office regarding the Student Activities Board and its financial condition and records keeping practices. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The University affirmatively advised that it did not have the records responsive to these requests. 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 regard. However, notwithstanding the University's disclaimer that it has no "official" records, the e-mails at issue in this appeal would clearly fall within the definition of a public record and the University acknowledged the existence of those records and explained how they were exempt from disclosure under authority of KRS 61.878(1)(i) and (j). KRS 61.870(2); 01-ORD-104, p. 5.
The University also denied request number six for copies of the professional calendar of Patricia S. Terrill under authority of KRS 61.878(1)(i) and (j). This office, and the courts, have recognized that a public official's appointment schedule and appointment calendars 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 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. Based on the foregoing authorities, we find that the University's response in this regard did not violate the Act.
Finally, the University acknowledged the existence of one e-mail that constituted correspondence with a Kentucky Kernel reporter and one of the officials identified in Mr. Kaalund's request. The University explained that the correspondence was an inquiry from the reporter to which the official responded in a preliminary manner and, thus, was exempt from disclosure under KRS 61.878(1)(i).
This e-mail, as explained by the University, cannot be characterized as "preliminary draft" or "note." KRS 61.878(1)(i). Given the rule of strict construction of the exceptions to public inspection which is codified at KRS 61.871, the Attorney General has narrowly construed this exception to apply, in general, to records which constitute "an aid to memory or . . . the basis for a fuller statement, as, for example, written or shorthand notes," or "a tentative version, sketch, or outline of a formal and final written product such as a draft report" 97-ORD-183, p. 4, and "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. Clearly the exception does not extend to "all writings from individuals to a public agency" . OAG 90-142, p. 6. On this issue, the Attorney General opined:
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.
In this instance, we conclude that the University has not met its burden of establishing that the e-mail inquiry from a reporter constituted "correspondence with private individuals," and does not qualify for exclusion from disclosure under KRS 61.878(1)(i). Accordingly, unless the University can establish that all or any part of the e-mail qualifies for exclusion under another applicable exception in KRS 61.878(1), it must be made available for inspection. 99-ORD-220.
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.