Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Governor's Office for Local Development (GOLD) violated the Open Records Act in the disposition of Seldon Horne's November 12, 2007, and December 5, 2007, requests for records relating to the sale of the debt obligation of the company he manages, East Kentucky Utilities, Inc. to Kentucky Frontier Gas, Inc. on August 8, 2007. GOLD administered this loan as part of the Gas System Restoration Development Program Revolving Loan Fund (GSRP), a federally funded loan program that GOLD was recently ordered to terminate. For the reasons that follow, we find that although GOLD's disposition of Mr. Horne's request was procedurally deficient, it properly disposed of the substantive issues on appeal by releasing, albeit belatedly, all nonexempt records in its custody as well as records prepared, owned, and used at its instance.
By letters transmitted on November 12, 2007, and again on December 5, 2007, Mr. Horne requested copies of Eastern Kentucky Utilities, Inc.'s "promissory note and/or mortgage setting out the terms and conditions for repayment of its debt" to GOLD; documentation regarding the state of East Kentucky Utilities, Inc.'s debt and the debts of other entities that have borrowed money from the GSRP Program, including "bid documentation from all bidders"; and documentation regarding the status of the transfer and sale of East Kentucky Utilities, Inc.'s debt, and any other entities that had borrowed money from the GSRP Program since its creation, including "correspondence or any other type of documentation setting forth when the transfer and sale of the debt of East Kentucky Utilities, Inc., and any of the other aforesaid entities, occurred or when it is anticipated that GOLD will transfer and sell the aforesaid debt to Kentucky Frontier Gas, LLC." (Emphasis in original.)
In a response dated November 16, 2007, GOLD staff attorney Andrew Hartley notified Mr. Horne that GOLD was "working to fill" his request, but anticipated that it would take "several more days to compile the documentation. " On November 19, Mr. Horne phoned Mr. Hartley to request that GOLD fax the promissory note referenced in his first enumerated request. GOLD did so that day, advising Mr. Horne in the fax cover sheet that the agency was "still working on the rest of [his] open records request."
In response to Mr. Horne's December 5 follow-up request, which largely mirrored his November 12 request, Mr. Hartley explained that the record identified in his second enumerated request, Kentucky Frontier Gas's proposal, was "currently in possession" of GOLD's outside counsel and therefore could not be provided "at this time." He indicated that GOLD was in the process of obtaining a copy and would forward it to Mr. Horne upon receipt. With reference to Mr. Horne's third enumerated request, Mr. Hartley advised:
[P]lease note that several of the documents . . . requested were not subject to disclosure under the open records act. Specifically, drafts of the contract between GOLD and Kentucky Frontier are excepted from disclosure under KRS 61.878(i) [sic] as "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " These drafts are not intended to constitute final agency action.
Shortly thereafter, Mr. Horne initiated this appeal, questioning GOLD's disposition of his second and third enumerated requests. 1
In supplemental correspondence directed to this office following commencement of Mr. Horne's appeal, GOLD amplified on its position. On behalf of GOLD, Mr. Hartley explained:
On November 16, 2007, within the three-day response period, GOLD responded to Mr. Horne's Open Records Request by fax, followed by first class mail. The response indicated that GOLD was working to compile the documentation responsive to the request and anticipated it would take several days to complete the process. On November 19, 2007, GOLD received a telephone call from Mr. Horne requesting that GOLD fax the documents responsive to the first enumerated request. That same day, GOLD faxed those documents to Mr. Horne.
On December 6, 2007, GOLD received a letter sent by Mr. Horne as a follow-up to his original Open Records Request. No additional requests were made in that letter. He complained that GOLD had not yet provided responses to enumerated items two and three of his original request. That same day, GOLD responded by first class mail by providing copies of documents responsive to enumerated requests number two and three. GOLD noted however that drafts of the contract for sale of the non-performing loan package were "excepted from disclosure under KRS 61.878(i) [sic] as: "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Additionally, GOLD noted that one of the requested records (the Proposal of the winning bidder Kentucky Frontier Gas, Inc.) was in possession of GOLD's outside counsel, who was responsible for negotiating the contract for sale of the loan portfolio. The response indicated that GOLD was attempting to obtain a copy of the document and would forward it as soon as it could be obtained.
On December 14, 2007, GOLD sent, by first class mail, a copy of the Kentucky Frontier Gas, Inc. Proposal, which totaled 455 pages. A copy of the letter is attached hereto. Accordingly, GOLD requested $ 45.50 in copying charges, representing $ 0.10 per page. At this point, GOLD considered Mr. Horne's Open Records Request to be filled.
In closing, Mr. Hartley advised that the GSRP Program is thirty-five years old, and that its records "comprise tens of thousands of documents, many of which are filed in different locations in the office." Because Mr. Horne requested "very specific documentation from the large collection of records," Mr. Hartley concluded, the office staff was "require[d] to scan through documents to locate those responsive to his request." It was the omission of this "detailed explanation" of the cause for delay, along with a statement of the earliest date on which the records would be available, that rendered GOLD's disposition of Mr. Horne's request procedurally deficient. It was GOLD's failure to treat Kentucky Frontier Gas, Inc.'s proposal as a record of the agency to which the public must be afforded timely access that further compromised its handling of this matter. Nevertheless, we find that GOLD belatedly corrected the latter error by releasing the proposal to Mr. Horne, after a copy was obtained from its outside counsel, and that it committed no error in withholding drafts of what was then, and may still be, an unexecuted contract for sale on the basis of KRS 61.878(1)(i). 2
KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law and is as much a legal obligation of a public agency as the provision of other services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage, or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In the appeal before us, GOLD notified Mr. Horne that the agency was "working to fill his request," but anticipated that it would "take several more days." This response was deficient in that it contained no explanation of the cause for delay. Moreover, KRS 61.872(5) "envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available." 01-ORD-38, p. 7 (emphasis in original); accord, 08-ORD-21. GOLD failed to state a date, speculative or otherwise, on which the records would be available. Following commencement of Mr. Horne's appeal, GOLD notified this office that the requested records were commingled with some thirty-five years of records that were widely dispersed within the agency. While this might have justified an extension of the three day period of limitation for records production, had it been offered as the detailed explanation for the delay at the appropriate time, we note that GOLD freely acknowledged that Mr. Horne requested "very specific documentation" relating to a single transaction that occurred in 2007. We can imagine no filing system that would require a review of the thirty-five years worth of records to locate those responsive to this specific request.
Mr. Horne submitted his original request on November 12, 2007, and GOLD took final action thereon over one month later. Given the analysis set forth above, we find that a delay of this duration was inordinate and therefore contrary to the procedural requirements of the Open Records Act codified at KRS 61.880(1).
We further find that although GOLD ultimately rectified its error by obtaining a copy of, and disclosing to Mr. Horne, per his request, a copy of Kentucky Frontier Gas, Inc.'s proposal, it initially erred in failing to treat that record as its own and thereafter affording Mr. Horne timely access to it. In 00-ORD-207, this office held that the City of Shepherdsville's argument that it properly denied an open records request for a copy of a settlement agreement in the possession of its insurance company because it did not have physical custody of the document was without merit. In support, we cited City of Louisville v. Brian Cullinan, 1988-CA-001237-MR and Cross Appeal 1998-CA-001305-MR (Ky. App. 1999), 3 an unpublished opinion of the Kentucky Court of Appeals in which the court rejected a similar argument advanced by the City of Louisville, ultimately concluding that "[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. "
In City of Louisville v. Brian Cullinan, above, the Kentucky Court of Appeals rejected the city's argument that documentation of legal expenses billed to the city by its contract attorneys were not public records because the city was not in possession of the items requested and therefore not the custodian of the records. The court reasoned:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents . . . .
City of Louisville at 4. On this basis, the court concluded that "the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6)," Id., and affirmed the circuit court's judgment ordering production of the records.
In the appeal before us, GOLD did not dispute the status of the requested proposal as a public record within the meaning of KRS 61.870(2), but indicated that a copy could not be provided because it was not "currently in [GOLD's] possession." As a result, over one month elapsed between the date of Mr. Horne's request and the date on which GOLD released the proposal to him. Given the fact that the proposal was "essentially [GOLD's] document . . . ," City of Louisville, at 4, this was unacceptable. We urge GOLD to bear in mind that "it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record, " City of Louisville, above, and that, absent a detailed explanation of the cause for delay and a statement of the earliest date on which the records will be available, timely access to public records has been defined as "any time less than three days from receipt of the request." OAG 84-300, p.3, cited in 93-ORD-134.
Having identified these deficiencies in its handling of Mr. Horne's requests, we nevertheless find that GOLD properly relied on KRS 61.878(1)(i) in denying that portion of his requests that implicated drafts of then, and perhaps still, unexecuted contracts. That exception authorizes nondisclosure of "[p]reliminary drafts, notes, correspondence with private individuals other than correspondence intended to give notice of final action of a public agency. " In 97-ORD-183, this office parsed the language of KRS 61.878(1)(i), opining:
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, especially one written down to aid the memory . . ." Id. at 804. [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
In a later decision, we applied this analysis to drafts of an unexecuted contract, concluding that the drafts could properly be withheld but that "[o]nce the contract is signed and executed by the parties, [the contract] would be subject to disclosure. " 04-ORD-061, p. 7.
Although KRS 61.871 declares that "free and open examination of public records is in the public interest and the exceptions provided for by law shall be strictly construed," 4 Kentucky's courts have determined that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended." KRS 61.878(1)[(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994); see also, Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6, 8 (Ky. App. 1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
The draft contracts to which GOLD denied Mr. Horne access fall squarely within the parameters of KRS 61.878(1)(i). In an early open records opinion such records were characterized as "the tools which a public employee or officer uses in hammering out official action within the function of his [or her] office." OAG 78-626, p. 2. Like the records at issue in this early opinion, the draft contracts at issue in this appeal were properly withheld under authority of KRS 61.878(1)(i) as "work papers which are exempted because they are preliminary drafts and notes," id., and we find no error in GOLD's denial of this portion of Mr. Horne'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.
Footnotes
Footnotes
1 Mr. Horne also requested that the Office of the Attorney General conduct a review of the underlying transaction, i.e., the sale of East Kentucky Utilities, Inc.'s debt obligations on August 8, 2007. Pursuant to KRS 61.880(2)(a), and the narrowly defined scope of authority set forth therein, we must decline this portion of his request and restrict our analysis to the question of whether GOLD violated provisions of KRS 61.870 to 61.884 in the disposition of his records applications.
2 At the time of Mr. Hartley's supplemental response, "[c]ontract negotiations between GOLD and Frontier Gas [had] been underway for several months, but no contract ha[d] been finalized."
3 Although City of Louisville v. Brian Cullinan is an unpublished opinion rendered before January 1, 2003, that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c) cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent.
4 KRS 61.871.