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 Oldham County Judge/Executive Mary Ellen Kinser violated the Open Records Act in denying Oldham County Chief Deputy Sheriff Ronald W. Jones' requests for a copy of "a letter to 'Washington' regarding the Oldham County Sheriff's Office Domestic Violence Unit" which Judge Kinser referenced in the March 1, 2005, meeting of the Oldham County Fiscal Court. For the reasons that follow, we find that although the Judge/Executive improperly relied on KRS 61.878(1)(c)2.a. in her original denial of Deputy Jones' requests, she properly characterized the letter as preliminary correspondence per KRS 61.878(1)(j) 1 in her supplemental denial of the requests. Having so determined, we remind the Judge/Executive that pursuant to KRS 61.878(3), Sheriff Steven W. Sparrow, and any member of his office to whom the letter "relates," is entitled to inspect and obtain a copy of the letter notwithstanding its preliminary character.
We will dispense with a lengthy recitation of the facts giving rise to this appeal, noting only that Judge Kinser initially maintained that she had no recollection of, and/or could not locate, 2 the disputed letter, which she characterized as a "letter of support sent to elected congressional officials asking them to help continue the funding for [the] Domestic Violence Program" and suggesting "options for the grant's administration." However, in a document entitled "Judge Kinser's Domestic Violence Letter Controversy," which Deputy Jones obtained from the Oldham County Police Department through a collateral open records request, and which he attached to his appeal, the letter was described as containing no reference:
however oblique, to "collaborating" with the Oldham County Police Department [OCPD] on the possible future funding of the Domestic Violence Unit [DVU]. It specifically outlined at least four areas of concern as identified in a letter to Judge Kinser from the federal administrators of the prior DVU Grant, wherein the conclusion was drawn that the Sheriff's Office [SO] had not performed sufficiently in their grant administration of the DVU.
Judge Kinser went on to state in the letter that [Oldham County Chief of Police Michael] Griffin helped her prepare that she no longer had faith in the SO's ability to manage the DVU. She was asking for support for future funding of the DVU under the management of the OCPD, with direct oversite coming from her office. This letter was prepared for delivery to the following individuals: U.S. Congressman Geoff Davis; U.S. Senator Jim Bunning; U.S. Senator Mitch McConnell; Larry Cox, administrative aide to Senator McConnell.
We further note that Deputy Jones subsequently furnished this office with a copy of a letter from Congressman Davis to Judge Kinser in which the Congressman references press reports indicating that Judge Kinser had taken the position that she could not honor Deputy Jones' request because she did not retain a copy of the letter. Continuing, Congressman Davis provides Judge Kinser with a copy of the letter and urges her to "release your correspondence with my office so that the issues surrounding the Domestic Violence Unit's funding can be fully aired and investigated." It appears that to date, Deputy Jones has not obtained a copy of Judge Kinser's letter to Congressman Davis, and it is on his right of access to that letter that we focus.
To begin, we believe that Judge Kinser improperly relied on KRS 61.878(1)(c)2.a. in her original denial of Deputy Jones' request. That exception authorizes nondisclosure of:
Records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
In construing this exception, the Attorney General has consistently recognized that in order to qualify for exclusion under KRS 61.878(1)(c)2.a., a public record must be:
1) confidentially disclosed to an agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary, and
3) compiled and maintained in conjunction with an application for or the administration of a loan or grant.
This exception is facially inapplicable to the letter in dispute.
First and foremost, the letter is a record of the agency not a record confidentially disclosed to the agency or required by the agency to be disclosed to it. See 97-ORD-66 (holding that Kentucky Employers' Mutual Insurance Authority violated the Open Records Act in refusing to disclose, under authority of KRS 61.878(1)(c)1. operational and financial records, as well as personnel files, that it created in the ordinary course of business); 01-ORD-87 (holding that Franklin Electric Plant Board's reliance on KRS 61.878(1)(c)1. to support its denial of a request for the minutes of its meetings, and financial projections submitted to the board by a sister electric plant board acting as an outside consultant since these records were generated by or for the board); 04-ORD-058 (holding that University of Louisville improperly invoked KRS 61.878(1)(c)1. in withholding football practice tapes inasmuch as tapes were created by the University); accord, 01-ORD-143; 01-ORD-153; 03-ORD-129; 04-ORD-058; 05-ORD-155. The letter fails the first part of the three part test for invocation of the exception. 96-ORD-135; 97-ORD-66; 97-ORD-132; 01-ORD-143; 04-ORD-058.
Moreover, letters exchanged by public officials are rarely of a "confidential or proprietary" nature within the meaning of KRS 61.878(1)(c)2.a. In Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 767 (1995) the Kentucky Supreme Court analyzed this language in the context of the cited exception concluding that the public agencies, which had invoked it on behalf of a private entity, met their statutory burden of proof. There, the Court observed:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability . . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2) .
In general, KRS 61.878(1)(c)2., and its four subparts, are "aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency . . . ." 01-ORD-87, p. 8; 01-ORD-143. The underlying purpose for which the exception was enacted is not served by nondisclosure of Judge Kinser's letter to Congressman Davis. Notwithstanding the fact that the letter was arguably maintained "in conjunction with an application for or the administration of a loan or grant," it does not qualify for exclusion under the remaining requirements set forth at KRS 61.878(1)(c)2.a.
As noted, in supplemental correspondence directed to this office, Judge Kinser expanded upon her arguments supporting denial of Deputy Jones' request, asserting that the letter also falls within the parameters of KRS 61.878(1)(j), authorizing nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." Although this exception is generally reserved for interagency communications, and is "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," 3 it is not expressly restricted to interagency communications. Thus, at page 7 of 93-ORD-125, we stated that "KRS 61.878(1)(i) and (j) have been interpreted to authorize the nondisclosure of both interagency and intraagency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." "This rationale," we concluded, "is equally compelling regardless of whether the communications are within agency or between agencies." Id. As long as the substance of the communications consists of recommendation, opinion, or proposed policy, and the recommendations made, opinions expressed, or policies proposed have not been adopted as part of the agency's final action relative to the matter under discussion, 4 oyHHOHoyKRS 61.878(1)(j) authorizes nondisclosure of the record memorializing them unless and until they are so adopted.
Our review of the varying descriptions of the disputed record confirms that it consists largely of Judge Kinser's opinion relative to the Oldham County Sheriff, his office, and his "ability to manage the DVU," proposed policies relative to future funding for the DVU, and recommendations relative to her office's role in overseeing the requested funding. Further, our review of the record on appeal confirms that no final action has been taken by the Oldham County Fiscal Court in this matter. Accordingly, we find that although the original argument advanced by Judge Kinser in support of the denial of Deputy Jones' request was without merit, she properly characterized the letter as a preliminary recommendation or preliminary memorandum in which opinions are expressed or policies formulated in her supplemental denial.
Nevertheless, we believe that as public agency employees, Sheriff Sparrow and his employees have a greater right of access to the disputed letter than the public generally. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
By virtue of the rights granted them by KRS 61.878(3), Sheriff Sparrow and other public employee to whom the letter "relates" are entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to [them]." Thus, the letter which is otherwise shielded from disclosure by KRS 61.878(1)(j) as to the public generally must be made available to the Sheriff and his staff if it, in fact, "relates" to them, notwithstanding the inconvenience or embarrassment that disclosure may entail. Accord, 94-ORD-9; 95-ORD-97; 96-ORD-8; 98-ORD-34; 01-ORD-126; 03-ORD -118.
For purposes of contrast, we note that the term "relates" found in KRS 61.878(3), and relating to a public employee's right of access to otherwise exempt public records, is far more expansive in its scope than the term "contains a specific reference to" found in KRS 197.025(2) and restricting an inmate's right of access to public records in which his name appears. See, 04-ORD-086 and authorities cited therein. The term "relate" is defined as having "connection, relation, or reference," The American Heritage College Dictionary, 1173 (4th ed.), and does not always require specific references in the form of a name. To the extent that the contents of the letter relate to the Sheriff, his office, and his employees, he and his employees are entitled to inspect and obtain a copy of it. The mandatory stricture found at KRS 61.878(3) overrides any otherwise applicable exception, including KRS 61.878(1)(j), to compel disclosure of the letter and supporting documentation.
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.
Ronald W. JonesChief Deputy SheriffOldham County Sheriff's Office100 West Jefferson StreetLaGrange, KY 40031
Mary Ellen KinserOldham County Judge/Executive100 West Jefferson StreetLaGrange, KY 40031
John R. FendleyOldham County AttorneyFiscal Court Building100 W. Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 Judge Kinser also invoked KRS 61.878(1)(h) and (i) in her supplemental denial of Deputy Jones' requests. Because we believe that she properly characterized the letter as a preliminary recommendation or preliminary memorandum per KRS 61.878(1)(j), we do not address the propriety of her invocation of these provisions except to note that we fail to see how the disputed letter could be characterized as a record of a law enforcement agency or an agency involved in administrative adjudication within the meaning of KRS 61.878(1)(h), or a preliminary draft or note or correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency within the meaning of KRS 61.878(1)(i).
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2 Deputy Jones correctly identifies the records management issue which this admission raises. Clearly, a letter from a county judge/executive to a congressman or congressmen soliciting support for continued local funding represents official correspondence which must be permanently retained. (Local Government General Records Retention Schedule, Series L4954.)
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3 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125.
4 City of Louisville v. Courier-Journal and Louisville Times, Ky., App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times, Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Times, Ky. App., 830 S.W.2d 373 (1992); 00-ORD-139 (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) .
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