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 Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(i) in denying Mark Barker's July 11, 2007, request for "all records and information available to LFUCG concerning any correspondence by Council Members Chuck Ellinger, Andrea James, Julian Beard, Kevin Stinnett, George Myers, Jay McChord, Don Blevins, and Ed Lane or their assistants regarding [opposition to the recent Hollywood-Mount Vernon application for an H-1 overlay] or regarding the Moretoreum [sic] placed on the application last year." For the reasons that follow, we find that LFUCG's reliance on KRS 61.878(1)(i) was misplaced.
In a response dated July 17, 2007, LFUCG Attorney Senior Keith Horn acknowledged the existence of records responsive to Mr. Barker's request, but indicated that they were unavailable for inspection because they constitute "correspondence with private individuals within the meaning of KRS 61.878(1)(i)." Shortly thereafter, Mr. Marker initiated this appeal questioning LFUCG's reliance on KRS 61.878(1)(i) in light of 05-ORD-280 and 06-ORD-184, and noting that "LFUCG previously on the same proposed H-1 overlay had provided emails and other correspondence with private individuals upon request of similar nature." In support, he attached a series of letters and emails expressing support for the Hollywood-Mt. Vernon H-1 overlay.
In supplemental correspondence directed to this office following commencement of Mr. Barker's appeal, Mr. Horn elaborated on LFUCG's position. He observed:
There seems to be no disagreement that Mr. Barker was seeking correspondence between Council Members and individuals in the community (i.e., constituents) concerning the historic overlay application and hearing for the Hollywood-Mt. Vernon area. The correspondence requested constitutes "correspondence with private individuals." [Mr. Barker] . . . simply either does not understand why or disagrees that such records are exempt from public inspection.
Mr. Horn distinguished the referenced open records decisions on the basis that the correspondence at issue in those appeals was exchanged by public employees as opposed to private individuals. 1 He noted that the previously disclosed correspondence supporting the historic overlay had been directed to the Board of Architectural Review or the Office of Historic Preservation and "is made part of the record created by the [Board] when considering an application to become an historic district (i.e., for 'historic overlay' or H-1 zoning)." It was his position that because "such correspondence is made part of the record . . ., it is considered by the [Board] in making its recommendation and loses its exempt status as correspondence with private individuals." In contrast, Mr. Horn concluded, the disputed correspondence "is not part of the record of the hearing before the Council . . . [whose] decision . . . is based on the evidence presented at the hearing." To facilitate our review of the issue on appeal, and pursuant to our request under KRS 61.880(2)(c), 2 Mr. Horn subsequently provided this office with copies of the disputed correspondence for in camera inspection. Having reviewed the correspondence, and recognizing that LFUCG advances this argument in good faith, we nevertheless find that the weight of authority does not support its position.
[T]he General Assembly has determined "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." KRS 61.871. In construing this provision, the Kentucky Supreme Court has declared that "the unambiguous purpose of the Open Records Act is the disclosure of public records . . . [and] an extensive mechanism has been created for the exercise of the right of inspection. . . ." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994) cited in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., 941 S.W.2d 469, 470 (Ky. 1997). The Court has further noted that in analyzing the Act "we are guided by the principle that 'under general rules of statutory construction, we may not interpret a statute at variance with its stated language.'" Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766, 768 (Ky. 1995) citing Layne v. Newberg, 841 S.W.2d 181, 183 (Ky. 1993). Ultimately, the Court has concluded, the Open Records Act "exhibits a bias favoring disclosure. " Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, 826 S.W.2d 324, 327 (Ky. 1992). With these principles in mind, we turn to the exception relied upon by LFUCG to support its denial of Mr. Barker's request.
LFUCG relies on KRS 61.878(1)(i) authorizing 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. 3
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 01-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. )
Of particular relevance to the issue now before us, in 04-ORD-192 the Attorney General held that the City of Danville improperly withheld a petition signed by individuals supporting the sale of city owned property as correspondence with a private individual, and concluded that the petition was a formal written document requesting a right or benefit from a group in authority upon which that group was expected to rely in taking action relative to the sale of the property. At page 4 of that decision, we reasoned:
As "a formal written document requesting a right or a benefit from a person or group in authority," Webster's II New Riverside University Dictionary, p. 879 (1984), it is a public declaration of support to which these individuals affixed their signatures. It therefore cannot be characterized as "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurance of confidentiality, " but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property. The city acknowledges that the signers affixed their signatures with the goal of "advocat[ing] or recommend[ing] certain policy action." Because it cannot be properly characterized as correspondence with a private individual, it became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in this matter. Accord, OAG 80-450; OAG 83-134; 00-ORD-172.
Accord, 05-ORD-072; 05-ORD-144.
Like the document at issue in 04-ORD-192, the correspondence at issue in this appeal is in the nature of communications upon which the Council is expected to rely in taking action relative to the proposed historic overlay, and was submitted with the goal of advocating or recommending a certain course of action. Nothing in the record on appeal, or the disputed correspondence itself, suggests that the candor of the correspondents was dependent upon assurances of confidentiality. Our conclusion is not altered by the fact that the Council's ultimate decision in this matter "is based on the evidence presented at the hearing." The disputed correspondence was, in fact, submitted with the expectation that the Council would rely on it to take the course of action advocated by the correspondent, and, under the line of reasoning set forth above, does not qualify as correspondence with a private individual. Consistent with those open records decisions, the correspondence becomes an open record upon submission, and Mr. Barker is entitled to inspect and/or obtain copies of that correspondence.
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.
Footnotes
Footnotes
1 We concur with LFUCG in the view that the referenced decisions do not represent controlling authority on this issue. Resolution of this appeal instead turns on the line of decisions discussed below.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
3 LFUCG does not argue that the petition is a preliminary draft or note. Nor do we believe that such an argument could reasonably be made. See 97-ORD-183 (analyzing the terms "draft" and "note" in the context of KRS 61.878(l)(i)).