Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Planning and Design Services properly relied on KRS 61.878(1)(d), (i), and (j) in denying Stephen T. Porter's May 26, 2005, request for public records "which pertain to any preapplication for a zoning change or a conditional use permit or to any preapplication or concept plan for a major subdivision and which are related to any property in Louisville and Jefferson County, Kentucky." For the reasons that follow, we affirm only in part Metro Planning's reliance on KRS 61.878(1)(d) and find that its reliance on KRS 61.878(1)(i) and (j) was misplaced.
On behalf of Metro Planning, Assistant Jefferson County Attorney Kris M. Carlton relied on the position previously taken by Metro Planning in responding to Mr. Porter's earlier request for identical public records relating to a particular geographic area. 1 She explained that planning development and zoning preapplications "are preliminary processes" involving "preliminary discussions among [potential buyers/developers and staff, the former of whom] may later choose to file a formal application for rezoning, subdivision, street closure, or for a conditional use permit [,]" and that the process consists of "purely technical discussions about what types of submissions would be required for a complete, formal filing." Metro Planning maintained that "no decisions [are] sought, or made, as a result of a preapplication meeting." Records relating to those preapplications that do not culminate in formal application are destroyed "having never reached the status of an 'open record,' because they . . . [retain] their preliminary status." Records relating to preapplications that do culminate in formal application "are merged into the formal application file, . . . receive[] a docket number, and become an open record . . . ." Ms. Carlton invoked KRS 61.878(1)(d) 2 as an additional basis for denial, noting that upon preapplication, and unless informed otherwise, Metro Planning "assumes that the property may not yet be acquired by means of purchase, or that the proposed project is not to be made public because it would interfere with acquisition negotiations." Dissatisfied with Metro Planning's denial of his request, Mr. Porter initiated this appeal to the Office of the Attorney General.
In the interest of brevity, we summarize the salient points in Mr. Porter's letter of appeal:
. Louisville Metro Planning Commission and Board of Adjustment policies, which declare that "[p]reapplication [materials] are confidential," and are enforced by Metro Planning, violate KRS 61.871 of the Open Records Act. 3
. KRS 61.878(1)(d) is inapplicable to the disputed documents because it is aimed at "large economic development cases, such as the location of a Toyota plant or a similar project . . . [and not at] a developer changing a five-acre parcel from single family to multi-family . . . or at a developer who is building a speculative commercial center . . . . Additionally, because it excludes "applications to agencies for permits or licenses necessary to do business," KRS 61.878(1)(d) is inapplicable insofar as "a permit for proper zoning, a conditional use permit, or a subdivision approval are all examples of permits or licenses necessary to do business."
. KRS 61.878(1)(i) and (j) are similarly inapplicable because the "preapplication" and "formal application" processes are "one integrated process" which the public should be afforded the opportunity to monitor from inception. The mandatory preapplication process requires the submission of a formal written instrument, multiple copies of site plans which contain 31 items of "minimum information," and the payment of a fee. It is not a "casual process," nor does it consist merely of discussions. "Concept plans" which are submitted for major subdivisions not requiring zoning changes are the functional equivalent of preapplications and should be treated as such for open records purposes. Rejecting the "artificial" dichotomy established by Metro Planning, Mr. Porter asserts:
In support, Mr. Porter cited 04-ORD-192, 04-ORD-125, 02-ORD-86, 00-ORD-98, 99-ORD-220, 99-ORD-207, and 97-ORD-1.
Based on the cited authorities, we agree subject to the single exception of records relating to those properties for which preapplication has been made that Metro Planning has determined satisfy the requirements of KRS 61.878(1)(d).
In supplemental correspondence directed to this office following commencement of Mr. Porter's appeal, Metro Planning reaffirmed its previous position that "all 'pre-application' materials are preliminary, not utilized for the issuance of any type of permit or license, and that if an actual application is made, any such related documents are merged into the application and immediately become available as an open public record." Objecting to Mr. Porter's failure to specify a particular property or a time frame, Ms. Carlton noted that preapplication documents are destroyed within one year after discussions cease if no formal application is filed, that "the only responsive documents that may exist will be those that are about one year old or less," and that these documents are "segregated from other files."
Contrary to Mr. Porter's belief that preapplications are "applications made to a government agency in order to achieve a result from that agency, [specifically] a permit to operate a certain type of land use on a piece of real estate," and the records relating thereto open records, Metro Planning maintained that the records are preliminary inasmuch as:
The preapplication process is technical in nature, in order to help an applicant determine which items it will be necessary to obtain in order to file a formal application. No decision is ever made, nor is any type of permit, license, or permission to utilize the land in a particular manner ever made after a preapplication discussion, but only upon a formal application filing.
Indeed, Metro Planning asserted, "[b]ecause these are preliminary documents that do not lead to an activity of Metro Planning (no decision is made), then the preapplications cannot be characterized as a public record" per KRS 61.870(2), which excludes from the definition of the term public records, records that "are not related to functions, activities, programs or operations that are funded by state or local authority." 4
In later correspondence, Metro Planning reminded the Attorney General that it is his statutory duty "to determine the disclosability of the requested records, and not to change governmental procedures to suit the desires of private individuals." Additionally, the agency reminded this office that "[t]he objective of the Open Records Act is not to ensure a high level of participation in governmental processes, but merely to afford access to public records . . . ." While we fully concur with Metro Planning in this regard, we find its arguments in chief unpersuasive and its reliance on KRS 61.878(1)(i) and (j) misplaced. Where, however, it determines that the specific requisites for invocation of KRS 61.878(1)(d) are met with respect to a particular property, thereby satisfying the burden of proof statutorily assigned to it by KRS 61.880(2)(c), Metro Planning may properly rely on that exception to withhold "public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in . . . the Commonwealth."
To begin, we focus not on a "process," and discussions relating thereto, or on the public's right to participate in the process, but on records submitted to a public agency for the ultimate purpose of obtaining a zoning change, conditional use permit, or approval of a subdivision plan and the ability of the public to monitor the agency by means of records access from beginning to end. We are guided in our analysis by existing legal authority, specifically 99-ORD-220 and its progeny, construing the phrase "correspondences with private individuals," 97-ORD-183 and its progeny, construing the terms "preliminary draft," and "note," and a long line of decisions construing KRS 61.878(1)(j). Finally, we are guided by the statement of legislative policy set forth 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, even though such examination may cause inconvenience or embarrassment to public officials or others," and the judicial declaration that the Open Records Act "exhibits a bias favoring disclosure. "
Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992). With these authorities in mind, we turn to the exceptions relied upon by Metro Planning to support its denial of Mr. Porter's request. 5
KRS 61.878(1)(i)
As noted, the records at issue in this appeal consist of preprinted "application forms," 6 multiple copies of a site plan (containing 31 specified elements of "minimum information"), Metropolitan Sewer District checklist and application, and, in some cases, preliminary stamps from MSD, Louisville Metro Public Works or Louisville Inspections, Permits and Licenses. They may include additional unspecified written material. Our review of the documents submitted by Mr. Porter in support of his position substantiate his view that these records are neither preliminary drafts nor notes within the scope and meaning of KRS 61.878(1)(i). That exception 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.
In construing this exception, the Attorney General has 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)[(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.
OAG 78-626, p. 2. Resolution of this appeal turns, in part, on the issue of whether these records qualify for exclusion from public inspection because they are little more than preliminary drafts or notes. As we noted in 97-ORD-183 and succeeding decisions, the term draft is defined as "a preliminary outline, plan or version." Webster's II New Riverside University Dictionary 402 (1988). The term note is defined as "a brief record, esp. one written down to aid the memory." Id. at 804. Notwithstanding the fact that the disputed records are submitted at the earliest stages of the application process, we do not believe that they qualify as either a draft or a note.
These records are not notes. They were not created as an aid to memory or as a basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67; 97-ORD-183 (holding that KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). In responding to this office's KRS 61.880(2)(c) request for additional information to substantiate the agency's position in Mr. Porter's earlier appeal, Metro Planning characterized the application and related materials as a "note," explaining that it represented "a tool for information-gathering purposes . . . ." This, however, does not appear to be the "common and approved" meaning of the term,
Young v. Commonwealth, Ky., 968 S.W.2d 670, 672 (1998), and we are not prepared to strain the language of the exception to shield these records from disclosure. As the formal written instrument signaling the applicant's interest in initiating the zoning process, the application and related materials are far from random notations or a simple aid to memory.
Nor are these records a draft. They do not represent a tentative version, sketch, or outline of a formal and final written product such as the draft report with which we dealt in OAG 89-34, 93-ORD-125, 94-ORD-38, or 00-ORD-195. Although discussions with Metro Planning staff may result in the correction of deficiencies and even modifications, amendments, and improvements, the application and related materials contain specific data elements and the applicant's fully conceptualized site plan. They are final as to the applicant upon submission. Metro Design acknowledges as much by recognizing that, unlike preliminary work papers, the materials cannot be "destroyed or kept at will," but must be retained for a period of at least one year from the date on which the last action was taken. We are therefore not persuaded that the disputed records fall within the parameters of KRS 61.878(1)(i) as that exception has been, and must be, strictly construed.
Further, we find that the materials do not qualify for exclusion from public inspection as "correspondence with private individuals, other than correspondence that is intended to give notice of final action of a public agency" per KRS 61.878(1)(i). In 00-ORD-168, this office held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence with private individuals," is generally reserved for that narrow category of public records that reflects "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 government agency . . . ." OAG 90-142, p. 6. In the latter opinion, the Attorney General concluded:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids.
OAG 90-142, p. 6.
In 99-ORD-220, we applied this reasoning to applications from private entities or individuals to a governmental agency for licenses to do business, modifying OAG 90-142 to the extent that that opinion held that disclosure was mandatory only after final governmental action, and determining that the applications become open records upon submission. 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 02-ORD-86, we extended this reasoning to applications for the purchase of conservation easements, holding that the applications did not qualify for exclusion from public inspection as correspondence with private individuals pursuant to KRS 61.878(1)(i), but instead became open records upon submission. See also, 00-ORD-98 (holding that Finance and Administration Cabinet's reliance on KRS 61.878(1)(i) to withhold correspondence with a private contractor on issues relating to the administration of the contract was misplaced) ; 04-ORD-192 (holding that City of Danville improperly withheld petition signed by individuals supporting the sale of city owned property as correspondence with private individuals and finding that the petition was a formal written document requesting a right or a benefit from a group in authority).
Here, as in the line of decisions cited above, the disputed materials do not qualify for exclusion as correspondence with a private individual. The end result sought by the applicant in submitting these materials, whether the result is accomplished or stalled, is approval by Metro Planning and the agencies it serves of the requested zoning change or receipt of conditional use permit. As in 99-ORD-220, 00-ORD-98, 02-ORD-86, and 04-ORD-192, the materials are submitted with the expectation that action will ultimately be taken even if that expectation is, at some juncture, dashed, and therefore the materials cannot be characterized as correspondence with a private individual. Consistent with this line of decisions, we find that the application materials "were open records upon submission." 02-ORD-86, p. 8.
Finally, we find that the disputed materials are not shielded from disclosure by operation of KRS 61.878(1)(j), which excludes from public inspection:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In relying on this exception, Metro Planning does little more than recite the language of exception and assert that no final action is taken on the materials. Because we reject Metro Planning's attempt to compartmentalize the "preapplication" and application process, and characterize materials relating thereto as "preliminary," we conclude that its reliance on this exception is similarly misplaced.
The purpose underlying KRS 61.878(1)(j) has been widely discussed and turns on the recognition that:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4. KRS 61.878(1)(j) is thus "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." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125. That purpose is not served by nondisclosure of a formal written instrument, and related materials, tendered to a public agency as a necessary and required step in the application for zoning approval, rezoning, or a conditional use permit, and consisting of specific data elements and fully conceptualized site plans, as opposed to an internal communication amongst agency staff, regardless of whether the application is ultimately approved. 7 Although Metro Planning repeatedly emphasizes that its involvement in the "process" is restricted to "discussions" between the applicant and staff, it is possible that written memoranda exchanged by staff find their way into the "preapplication" file and that these records may be withheld upon a proper showing that they were not adopted as part of the final agency action in that particular matter. 04-ORD-192, p. 5.
Accordingly, we find that the disputed records do not qualify as preliminary recommendations or memoranda in which opinions are expressed and that Metro Planning's invocation of KRS 61.878(1)(j) was not warranted by the express language of that exception.
KRS 61.878(1)(d)
There is little to guide us in assessing the propriety of Metro Planning's reliance on KRS 61.878(1)(d) to withhold the disputed materials based on its "assum[ption] that the property may not yet be acquired by means of purchase, or that the proposed project is not to be made public because it would interfere with acquisition negotiations." 8 As noted, that exception authorizes nondisclosure of:
Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection.
It is abundantly clear, however, that in invoking this exception to deny access to public records, "the burden of proof in sustaining the action shall rest with the agency," 9 and that such assumptions are insufficient to satisfy the statutorily assigned burden of proof. In responding to this office's request for additional information in the mooted open records appeal referenced above, Metro Planning rankled at the suggestion that it could only invoke KRS 61.878(1)(d) if "no previous disclosure ha[d] been made" of a prospective location of a business or industry, expressing its concern "that the Attorney General believes that it should become an investigator . . . ." 10 In those cases where it elects to deny access to public records on this basis, in responding to an open records request, Metro Planning must do just that in order to meet its statutory burden. We therefore find that Metro Planning may rely on the cited exception only where it has made sufficient inquiry to insure that the applicant has not previously disclosed his/her interest in developing a prospective location as a business or industry and, then only if it can establish that a permit for proper zoning, a conditional use permit, or subdivision approval is not the functional equivalent of a permit or license necessary to do business on the particular facts presented. A blanket denial based on a blanket assumption will not suffice.
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.
Stephen T. Porter2406 Tucker Station RoadLouisville, KY 40299-4529Charles C. Cash, A1A, DirectorLouisville Metro Planning & Design Services444 S. 5th Street, Suite 100Louisville, KY 40202
Kris M. CarltonAssistant County AttorneyOffice of Jefferson County Attorney531 Court Place, suite 1001Louisville, KY 40202
Footnotes
Footnotes
1 The open records appeal arising from the denial of that request was "mooted" when the conditions deemed precedent to disclosure, which will be described below, were satisfied and the requested records released to Mr. Porter. 40 KAR 1:030 Section 6.
2 KRS 61.878(1)(d) authorizes nondisclosure of:
Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection.
3 Metro Planning advises this office that the challenged policies have been deleted and that these agencies now rely solely on Planning Commission Policy 9.01, which states, "The Planning Commission shall conform to KRS 61.870 to 61.884 regarding open records."
4 We reject, without further analysis, Metro Planning's position on this issue. We refer Metro Planning to 00-ORD-206 (enclosed), and in particular the discussion at pages 4 through 6 of that decision. The requested records are clearly "public records" ; whether they are "open records" is a closer question.
5 We will not lengthen this appeal with a discussion of Metro Planning's early assertion that Mr. Porter's request is over broad and the implication that production of responsive records would impose an unreasonable burden on the agency. The requested records relate to a particular agency function and are limited in time, by virtue of prevailing records management practices, to a single year.
6 This term appears on the preprinted form developed by Metro Planning and submitted to this office by Mr. Porter.
7 As an aside, we note that both the courts and this office have determined that agency inaction can constitute final action for open records purposes. As the Kentucky Court of Appeals concluded in Palmer v. Driggers, Ky. App., 60 S.W.3d 591, 597 (2001), quoting extensively from a decision of this office, "[t]he fact that the agency decided to take no further action on the complaint . . ., in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." This logic might be said to apply with equal force to applications submitted to Metro Planning in the unlikely event that they were properly characterized as preliminary recommendations or preliminary memoranda in which opinions are expressed.
8 June 2, 2005, response to Mr. Porter's May 26 request.
9 KRS 61.880(2)(c).
10 April 29, 2005, letter from the Office of the Jefferson County Attorney to the Office of the Attorney General.