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 the City of Bowling Green violated the Open Records Act in partially denying B. Alan Simpson's October 27, 2005, and November 9, 2005, requests for records relating to property owned by his clients and known as Bowling Green Estates. Having reviewed the disputed records under authority of KRS 61.880(2)(c), we affirm the city's partial denial of Mr. Simpson's requests with the exception of six records to which the claimed exemptions do not extend protection.
By letter dated November 8, 2005, Mr. Simpson notified this office of the city's partial denial of his request for copies of:
All emails, facsimiles, notes, memoranda, or any other form of communication between any member of city government including, but not limited to, Mayor Elaine Walker, city attorney, Gene Harmon (or anyone in his office) or any other city employee, especially the city Code Enforcement Division, regarding B. G. Estates and Julie Brown, including Julie Brown's resignation.
Mr. Simpson attached to his letter of appeal a copy of the City of Bowling Green's November 1, 2005, response in which the city advised that although his request was overbroad it had "determined that there might be records that meet [his] request." Relying on KRS 61.878(1)(i) and (j), as well a KRS 61.878(1)(l), incorporating the attorney client privilege into the Open Records Act, 1 the city explained:
These records consist of internal memoranda, preliminary drafts or notes not intended to give notice of final action of the city and preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended. Pursuant to the provisions of KRS 61.878(1)(i) and (j), such documents are exempt from inspections. In addition, certain of these documents are work product of the City Attorney or are documents protected by the attorney-client privilege and are exempted from disclosure pursuant to KRS 61.878(1)(l) as documents exempted from disclosure by enactment of the General Assembly.
Shortly thereafter, Mr. Simpson initiated an open records appeal, questioning the propriety of the city's disposition of his request.
By letter dated November 15, 2005, Mr. Simpson initiated a second open records appeal from the city's partial denial of his November 9 request for records identified as follows:
1. All email correspondence to and/or from any and all City of Bowling Green employees, elected officials and Code Enforcement Board members for a period beginning January 1, 2001, to November 8, 2005, that in any way are in reference to or regarding or have the subject heading of any of the following:
a. BG Estates (including any and all references to Bogle Estates, Bowling Green Estates, B.G. Estates, 2039 Russellville Road, Bowling Green, Kentucky, or Bogle Hall); Code Enforcement Hearings (also known as CEB Hearings), particularly with reference to July 26, 2005, August 17, 2005 and September 27, 2005 hearing dates;
b. Letter of Resignation of Julie Brown;
c. Arun Mahtani;
d. Ron Bradford;
e. Records numbers CDEF2001-267, CDEF20904-2102, CDEF2004-4968, CDEF2005-1029, CDEF2005-3268 CDEF2005-3775 and/or CDEF2005-4193;
f. All electronic or hard copies of any and all appointment calendars and/or documents or electronic record of any meetings scheduled in the City of Bowling Green's GroupWise system, that have the subject hearing or anywhere make reference to any of the subject headings listed above, including, but not limited to e-mails and calendar entries.
The bases for denial of this request, as set forth in the city's November 14 response, mirrored the bases for denial previously advanced. Additionally, the city denied his request for appointment calendars and meeting schedules, noting that "[o]pinions from the Attorney General's Office have determined that appointment calendars classify [sic] as internal memoranda, preliminary drafts or notes and are therefore exempt from disclosure. " Finally, the city directed Mr. Simpson to the Code Enforcement Board, "an independent entity from the City of Bowling Green," for a response to his request for documents from Code Enforcement Board members to which the city was not a party. The city acknowledged its duty to disclose Ms. Brown's resignation letter and thereafter furnished him with a copy. Dissatisfied with the city's response to his latest request, Mr. Simpson initiated a second appeal on November 15, 2006.
Because these appeals involve the same parties, arise from a common nucleus of facts, and present nearly identical questions of law, they are consolidated for purposes of adjudication under KRS 61.880(2). Having reviewed the records, and considered the well-reasoned arguments advanced by the city in its initial and supplemental responses to Mr. Simpson's requests and appeals, we affirm its partial denial of those requests with the exception of the records identified as nonexempt in the index that appears at the conclusion of this decision.
In general, the records to which Mr. Simpson was denied access were properly characterized by the City of Bowling Green as "internal memoranda [and] preliminary drafts or notes" and "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " some of which also qualify for exclusion from public inspection pursuant to KRS 61.878(1)(l) and KRE 503. 2 The city has ably set forth the pertinent legal authorities construing KRS 61.878(1)(i) and (j), and we will not unnecessarily lengthen this decision with a recitation of these authorities. These electronic records enjoy the same protection as hard copy records containing the same communications under a line of decisions dating back to 2000, 3 and a recent decision of the Kentucky Court of Appeals. In Baker v. Jones, Ky. App., S.W.3d (2006), 4 the court recognized that "emails which were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and] [therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. "
In 05-ORD-280, this office analyzed a series of recent decisions dealing with access to interagency email communications, contrasting the "conversational-type communications" at issue in 05-ORD-144, which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation" with the emails at issue in 05-ORD-210 and 05-ORD-221. In the latter decisions, we affirmed, in part or in whole, agency denial of access to emails containing recommendations and opinions, concluding that the emails fell squarely within the parameters of KRS 61.878(1)(i) and (j). 5 A copy of 05-ORD-280 is attached hereto and incorporated by reference.
Our review of the disputed emails largely confirms the city's position that they consist, almost entirely, of drafts and notes and/or interagency communications in which opinions are expressed and policies formulated or recommended. Only six of the disputed emails do not, in our view, quality for exclusion under the cited exceptions, insofar as they consist of neither drafts nor notes, nor contain opinion, recommendation, or policy formulation. Under separate cover, we have returned the disputed email to the City of Bowling Green, each bearing a numeric designation in the upper left corner corresponding to the index which appears at the conclusion of this decision. It is incumbent on the city to disclose those emails categorized as nonexempt to Mr. Simpson if they have not already been disclosed.
With reference to the responsive calendar pages which the City of Bowling Green withheld, we find ample support in existing legal authority for the city's position. In Courier-Journal v. Jones, Ky., App., 895 S.W.2d 6 (1995), the Kentucky Court of Appeals determined that the Office of the Governor properly denied a request for the Governor's appointment schedule, characterizing that document "as nothing more than a draft of what may or may never take place; a notation for inter or intra office use . . . ." Jones at 9. In 2005, this office was twice called upon to examine the propriety of an agency's denial of a request for a public official's calendar or schedule. At page 7 of 05-ORD-018, 6 we applied the court's reasoning in Jones to the Governor's denial of a request for his travel itinerary/schedule, concluding that "[r]esolution of [the issue on] appeal turns on judicial precedent dating back to 1995 and this office's recognition that 'if changes in the law are to be made, they should be made by the legislature and if subtle interpretations [of the law] are to be made, they should be made by the Court.'" Citing OAG 80-54, p. 4.
Within a few months of the issuance of 05-ORD-018, we were again asked to determine if a public agency, the Transportation Cabinet, properly denied a request for a former deputy secretary's "daily schedule." We affirmed the Cabinet's denial of the request. Quoting extensively from the Jones opinion, and in particular, the court's observation that access "to a broad array of opinions ad the freedom to seek all points of view, to exchange views, to exchange ideas, and to discuss policies in confidence, are essential to effective governance," and that "[p]articipants may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed," we held that the deputy secretary "possesses sufficient authority to develop and implement policy" and that the "reasoning of Jones is controlling." 05-ORD-145, p. 5, citing Jones and Times Mirror Co. v. Superior Court of Sacramento, 53 Cal. 3d 1325, 283 Cal. Rptr., 893, 813 P.2d 240 (1991).
Here, as in 05-ORD-145, we acknowledge the absence of direct legal authority for the proposition that the calendars of persons not occupying the position of chief executive enjoy protection under KRS 61.878(1)(i) and (j). Nevertheless, we find sufficient support in Jones for the city's denial of this portion of Mr. Simpson's request. We leave for another day the question of whether the calendars of rank and file employees enjoy protection under the cited authority. In sum, we find that the City of Bowling Green properly withheld all but six of the emails that the city determined were responsive to Mr. Simpson's request, as well as the responsive calendars. The city's only remaining duty under the Open Records Act is to produce for his inspection those emails deemed nonexempt.
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.
B. Alan SimpsonPierce, Simpson & ShadoanP.O. Box 1650Bowling Green, KY 42102-1650
Katie E. Schaller, City ClerkCity of Bowling GreenP.O. Box 430Bowling Green, KY 42101-0430
H. Eugene HarmonCity Attorney P.O. Box 430Bowling Green, KY 42102-0430
Footnotes
Footnotes
1 Although the city cited KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," the city did not cite the "enactment of the General Assembly" engrafted upon the Open Records Act by operation of KRS 61.878(1)(l). We assume that the city intended to rely on KRE 503. It is incumbent on the city to provide the additional statutory citation pursuant to KRS 61.880(1) as construed in Edmondson v. Alig, Ky., App., 926 S.W.2d 856 (1996).
2 The remaining records consist of the letter of resignation, to which Mr. Simpson has already been afforded access, and responsive appointment calendar pages which we will address below.
3 See 00-ORD-132.
4 Baker v. Jones is a nonfinal opinion.
5 Because these emails qualify for exclusion under KRS 61.878(1)(i) and (j), we do not address the propriety of the city's invocation of KRS 61.878(1)(l) and KRE 503 as additional grounds for nondisclosure.
6 05-ORD-018 was appealed to the Franklin Circuit Court, Division 1, Civil Action No. 05-CI-273.