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 Pike County Judge/Executive violated the Open Records Act in the disposition of Appalachian News-Express reporter Andrea Bennett's January 31, and February 7, 2007, requests for a copy of the letter sent to Judge Wayne T. Rutherford by Magistrate Chris Harris on January 30, 2007. For the reasons that follow, we find that the Judge's partial denial of Ms. Bennett's second request constituted both a procedural and substantive violation of the Act.
In a response dated February 3, 2007, Pike County Deputy Judge/Executive John Doug Hays notified Ms. Bennett that the requested record "is not subject to an open records request because it is nothing more than personal correspondence setting forth personal observations from a magistrate to the Pike County Judge/Executive."
On February 7, Ms. Bennett submitted a request for a copy of the same letter to the six Pike County magistrates. By letter dated February 13, 2007, Deputy Judge Hays advised that he had "revisited the issue" with Assistant County Attorney Roland Case and "decided that [their] initial determination may have been erroneous, at least in part." Continuing, Deputy Judge Hays observed:
We now concur that most of the letter in question is in fact subject to KRS 61.870 to 61.884. Specifically, we believe so much of the letter which calls for a special meeting of the fiscal court and which sets forth the requested agenda is subject to the act.
Unfortunately, we remain of the opinion that comments of a personal nature directed by Magistrate Chris Harris to Judge Rutherford are exempt under the act. We have therefore taken the liberty to redact so much of the letter which reflects such personal thoughts and comments.
Shortly thereafter, Ms. Bennett initiated this appeal.
In her letter of appeal, Ms. Bennett notes that "there is no exception to disclosure for personal thoughts or comments." Anticipating the argument that KRS 61.878(1)(a) authorizes partial nondisclosure of the letter, Ms. Bennett comments:
[T]he January 30 letter was printed on official Pike County magistrate stationery. Further, it was sent from a Magistrate to the Judge/Executive concerning official government business. Moreover, it was apparently copied to five other Magistrates, the County Attorney, and the Fiscal Court Clerk. As such, it is difficult to imagine how the disclosure of the redacted portions of this letter would constitute a clearly unwarranted invasion of personal privacy sufficient to outweigh the public's right to know about the workings of its Fiscal Court.
Having reviewed the disputed correspondence under authority of KRS 61.880(2)(c), we agree. 1
In supplemental correspondence directed to this office following commencement of Ms. Bennett's appeal, Deputy Judge Hays elaborated on the County Judge's position. He expressed the view that "this matter falls entirely within the parameters of OAG 79-496 as it is fully controlled by the rationale of that opinion." He reasoned:
This opinion involved correspondence between the US Attorney General's Office and an alderman. The correspondence had not been authorized by action of the Board of Alderman just as the instant letter had not been authorized by the fiscal court. The Attorney General opined that letter was not public record within the meaning of subsection (2) of KRS 61.870 because the alderman letters would be only private correspondence in the absence of board approval.
It was his position that the material redacted from Magistrate Harris' letter was precisely of this nature insofar as "it is private correspondence and was not approved by the Pike County Fiscal Court and therefore is not a public record within the meaning of KRS 61.870(2)." Based on subsequent amendments to KRS 61.870(2), upon which resolution of the issue on appeal in OAG 79-496 turned, and factual dissimilarities in the form and content of the letters in dispute, we find that the County Judge's reliance on OAG 79-496 to support partial nondisclosure of the disputed letter was misplaced.
To begin, we find that the County Judge/Executive failed to comply with KRS 61.880(1) in responding to Ms. Bennett's requests. 2 KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. The County Judge/Executive discharged this duty. KRS 61.880(1) also requires public agencies electing to withhold all or any portion of a public record to "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 construing this provision, the Kentucky Court of Appeals has 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.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although the Deputy County Judge vaguely asserted that "comments of a personal nature . . . are exempt under the act," his response did not include a statement of the specific exception authorizing the withholding of these comments. Moreover, the Deputy County Judge did not provide a brief explanation of how the exception applies to the record withheld, must less provide "particular and detailed information in response to [the] request." To this extent, the response of the Pike County Judge/Executive violated KRS 61.880(1).
Further, we find that the Pike County Judge/Executive's reliance on OAG 79-496 was misplaced, the statutory language upon which resolution of that appeal turned having been amended, and hold that his partial denial of Ms. Bennett's request constituted a violation of the Open Records Act. As the Deputy County Judge correctly comments, in OAG 79-496 this office determined that the City of Louisville properly denied a request for a letter from an alderman to the United States Attorney General concerning the mayor and a police captain, concluding that the letter was not a public record based on a portion of the definition of that term that appeared in KRS 61.870(2) in 1979:
"Public records" shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority.
OAG 79-496, p. 1. Because the alderman "undertook the correspondence as an individual and not on behalf of the governing body of the city," and "the correspondence [was] involved with the person of the Mayor and the Police Captain rather than the functions, activities, programs or operations funded by state or local authority, " the Attorney General affirmed agency denial of the request.
KRS 61.870(2) now provides:
"Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section [KRS 61.870] that are not related to functions, activities, programs, or operations funded by state or local authority [.]
KRS 61.870(2) thus cross-references KRS 61.870(1)(h) which defines the term "public agency" as "[a]ny body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." The net impact of the amendment to KRS 61.870(2) has been to narrow its scope and effect. As we observed in 00-ORD-206, the definition of public record that appears at KRS 61.870(2) 3 "is inclusive, extending to all 'documentation regardless of physical form or characteristics,' and the medium in which they are stored . . .," and an agency's reliance on the last sentence of KRS 61.870(2) to support its position that a requested record is not a "public record" is only proper if the agency is "a body referred to in subsection (1)(h) of [KRS 61.870]." The Pike County Judge/Executive, who was the recipient of the requested letter, is a local government officer and a "public agency" within the meaning of KRS 61.870(1)(b). So, too, is Pike County Magistrate Chris Harris, who was the author of the letter. Contrary to the argument advanced by the County Judge, records that are prepared, owned, used, in the possession of, or retained by the Judge/Executive or Magistrate Harris are "public records" for purposes of the Open Records Act, including the disputed letter. 4
Although the County Judge/Executive does not specifically cite KRS 61.878(1)(a) as an additional basis for denying Ms. Bennett's request, we can reasonably infer that he intended to rely on this exception to the Open Records Act from his assertion that "comments of a personal nature directed by Magistrate Chris Harris to Judge Rutherford are exempt under the Act." KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a) is generally reserved for public records which contain information that "touches upon the most intimate and personal features of private lives," Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), if disclosure does not advance the public's right to know. It does not, in general, apply to public records containing the thoughts and comments of one elected official to another on matters relating to public business and/or the discharge of official duties. In 02-ORD-52, this office rejected the City of Owensboro's reliance on KRS 61.878(1)(a) to deny a request for a copy of a letter sent by the chief of police to the mayor and a commissioner in which the chief expressed opinions and made recommendations about the police department. "Our position," we noted, was premised on the longstanding recognition that "the privacy exception applies only to matters which are unrelated to public business [;] matters relating to a public employee [or official] are of considerable public interest. " 02-ORD-52, p. 4. 5
Here, too, we reject the County Judge's implicit reliance on KRS 61.878(1)(a). Our review of a copy of both the redacted and unredacted letter confirms that it bears the official letterhead of the Office of the Pike County Magistrates, was copied to the remaining five magistrates, and is couched as an entreaty from both Magistrate Harris and the other magistrates. Although we cannot disclose its contents, per KRS 61.880(2)(c), we find that the entire letter relates to fiscal court business, and that there is little appreciable difference between that material which was withheld and the material which was disclosed other than the possibility that the material withheld may "cause inconvenience or embarrassment to" the County Judge or others. KRS 61.871. Because this is not a legitimate basis for denying the public access to that material, as evidenced in the statement of legislative policy codified at KRS 61.871, 6 we find that the Pike County Judge/Executive violated the Open Records Act in partially denying Ms. Bennett's request.
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.
Andrea Bennett
Wayne T. RutherfordPike County Judge/ExecutivePike County Courthouse146 Main StreetPikeville, KY 41501
John Doug HaysPike County Deputy Judge/ExecutivePike County Courthouse146 Main StreetPikeville, KY 41501
Roland CaseAssistant Pike County AttorneyP.O. Box 1289Pikeville, KY 41502-1289
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides, in part, "the burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request . . . a copy of the records involved but they shall not be disclosed." On February 16, 2007, this office requested an unredacted copy of Magistrate Harris' letter. The County Judge promptly honored that request.
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2 It is unclear why the County Judge responded on behalf of the magistrates, to whom Ms. Bennett's second request was directed. The record on appeal does not identify the official custodian of records for either the Office of the Pike County Judge/Executive, the Pike County Magistrates, or the Pike County Fiscal Court. Pursuant to KRS 61.870(5) and 61.876, the Open Records Act envisions the appointment of an "official custodian, " meaning "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." KRS 61.880(1) provides that all responses to open records requests "shall be issued by the official custodian or under his authority . . . ." If the official custodian of records for the Office of the Pike County Judge/Executive is not the official custodian of records for the Pike County Magistrates, it was improper for the former to respond on behalf of latter unless he did so "under [the] authority" of the Magistrates' official custodian of records. KRS 61.880(1).
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3 KRS 61.870(2) reads, in its entirety:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
4 We note a certain internal inconsistency in the County Judge's position. In OAG 79-496, the agency resisting disclosure asserted that the requested letter was not a public record, based on the definition of that term in 1979, and withheld the entire document. In the appeal now before us, the County Judge asserts that the requested letter is not a public record, based on the holding in the now superceded OAG 79-496, but has released those portions of the letter "which call[] for a special meeting of the fiscal court and which set[] forth the requested agenda," indirectly acknowledging that the letter is a public record. Assuming, arguendo, that the language of KRS 61.870(2) was never amended, and the statute properly invoked, the partial disclosure of the letter would call into question the County Judge's reliance on OAG 79-496.
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5 We hasten to note that this office ultimately affirmed the City of Owensboro's reliance on KRS 61.878(1)(j) to support nondisclosure of the letter, characterizing it as an internal communication in which opinions were expressed and policies recommended but upon which no final action had been taken. In the appeal now before us, the County Judge does not invoke KRS 61.878(1)(j), authorizing nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " and the record on appeal suggests that Magistrate Harris' letter may have been adopted as the basis of the County Judge's final action relative to calling a special meeting.
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6 KRS 61.871 thus provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is 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.
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