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 Christian County Board of Education violated the Open Records Act in denying Kentucky New Era Staff Writer Joe Parrino's March 5, 2008, request for copies of "any correspondence (and attached materials) between the Hopkinsville-Christian County Chamber of Commerce and the Christian County Board of Education during 2008." In the absence of evidence, circumstantial or otherwise, that the Superintendent's decision to resign, or the Board's decision to demand his resignation, was prompted by the single document generated by the Chamber during the specified time frame, 1 and apparently "never actually mailed or delivered by the Chamber . . . to the Central Office," we find that the Board properly relied on KRS 61.878(1)(j) in denying the Kentucky New Era's request.
In his letter of appeal, Mr. Parrino challenged the Board's reliance on KRS 61.878(1)(j), asserting that "[t]he correspondence, if it exists, is not preliminary in any sense . . . [,but is instead] a finished and final document sent by a third party (the Chamber of Commerce) to [the Board]." It was his position that the correspondence does not qualify for exclusion from public inspection because it "is not a preliminary, internal document to be used for discussion purposes."
In supplemental correspondence directed to this office following commencement of Mr. Parrino's appeal, the Board of Education acknowledged that it had worked with the Chamber "for the last few years, exchanging ideas and opinions on a variety of matters pertaining to the improvement of public schools in Christian County," but maintained that because "[t]here has been no final action taken by the [Board] in response to or because of the correspondence, " it is preliminary in nature and exempt from disclosure pursuant to KRS 61.878(1)(j).
By way of background, the Board's attorney, Jack N. Lackey, Jr., explained:
In the summer of 2007, the current superintendent had notified the [Board] and the public that he would not ask for his contract to be renewed when it expired on June 30, 2009. In January of 2008, the [Board] began discussions relative to the hiring of the next superintendent. In fact, in January of 2008, the [Board] District contracted with the Kentucky School Boards Association to work as its consultant in the hiring of a new superintendent. It is fair to say that, at that time, it was unknown how long the current superintendent would stay on board as superintendent. It was known that the current superintendent could decide to leave as early as the summer of 2008.
On February 28, 2008, the current superintendent announced at the end of a [Board] meeting that he would be resigning effective July 31, 2008. The only written complaint received had been from the local chapter of the NAACP, which had circulated a letter in January of 2008 requesting the Board of Education to take action to buy out the current superintendent's contract. In that letter, there was no allegation of misconduct. That complaint simply related to the school district's performance on state testing.
As noted, Mr. Lackey emphasized that the disputed correspondence "was never actually mailed or delivered by the Chamber of Commerce to the Central Office of the [Board]," distinguishing it from a line of cases in which the courts recognized that complaints of employee misconduct are deemed incorporated into final agency action and noting "there is simply nothing in [the disputed correspondence] to be considered incorporated into the superintendent's resignation . . . ." We agree.
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871 declaring 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." KRS 61.871. Nevertheless, we are mindful 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, App., 895 S.W.2d 6, 8 (Ky. 1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham, that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). Thus, no matter how compelling the public interest in disclosure of the disputed record may be in this particular case, that interest must yield to the statutory exemption authorizing nondisclosure of the record.
Resolution of the question presented in this appeal turns on the propriety of the Board's invocation of KRS 61.878(1)(j). As noted, that exemption authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " Although the exemption is commonly relied upon to protect the integrity of an agency's internal decision-making process, it is neither expressly nor impliedly restricted to intra-agency communications. Thus, in 02-ORD-101, this office affirmed the Daviess County Attorney's reliance on KRS 61.878(1)(j) to support his denial of a request for a copy of a letter relating to inmate medical care prepared by a private law firm and mailed to his office. Although we characterized the law firm's communication as a complaint, and noted that it would forfeit its preliminary status once final action was taken under the reasoning set forth in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982), we concluded that the communication nevertheless qualified for protection under KRS 61.878(1)(j) at the time of the request.
Having reviewed the letter at issue in the appeal now before us, we find that it consists of opinions and recommendations, rather than allegations of misconduct, and that it therefore cannot be characterized as a complaint. Because the record on appeal is devoid of evidence that the letter prepared by the Chamber, but "never actually mailed or delivered by the Chamber" to the Board, finally prompted the Superintendent to submit his resignation, or formed the basis of a final decision by the Board to demand that he submit his resignation, we conclude that the letter did not forfeit its preliminary characterization. His letter of resignation makes no reference to the Chamber's letter, of which he may or may not even have been aware. 2 The only ostensible nexus between the Chamber's communication and his actual resignation is one of timing, the communication bearing a date of February 20, 2008, and his letter of resignation bearing a date of February 29, 2008. Given the protracted course of events which culminated in the Superintendent's resignation, we do not believe that the Chamber's correspondence formed the basis of his final decision.
As the Board correctly observes, in City of Louisville v. Courier-Journal, above, Kentucky's Court of Appeals determined that a written complaint of misconduct which spawns an investigation or inquiry cannot be withheld after final action is taken. There, the court concluded that the public is entitled to know if complaints have been made and how they were resolved. Although they are preliminary documents within the meaning of KRS 61.878(1)(i) and (j) until final action is taken, complaints forfeit that protection when the matters complained of are resolved. On this issue, the Court of Appeals has opined:
Inasmuch as whatever final actions are taken necessarily stem from [the complaints that spawned the investigation or inquiry], they must be deemed incorporated as a part of those final determinations . . . The public upon request has a right to know what complaints have been made and the final action taken . . . thereupon.
City of Louisville at 659, 660.
Conversely, documents containing preliminary recommendations and preliminary memoranda 3 in which opinions are expressed and policies formulated do not forfeit their protected status upon the occurrence of final action, or the decision to take no action, if they are not adopted as the basis of final action. See, e.g., 01-ORD-87. As noted, the record on appeal is devoid of any evidence that the Chamber's letter formed the basis of the Superintendent's decision to submit his letter of resignation, and the coincidence as to the timing of the letter and his resignation is insufficient to overcome this paucity of evidence to the contrary. We therefore affirm the Christian County School Board's denial of the Kentucky New Era's open records request on the basis of KRS 61.878(1)(j).
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 Pursuant to KRS 61.880(2)(c), this office posed a series of questions to the Board and requested copies of the disputed record(s) for in camera inspection. The Board produced only one responsive document dated February 20, 2008. Under the terms of KRS 61.880(2)(c), the Office of the Attorney General is foreclosed from revealing the contents of that document.
2 The Board, having asserted that the Chamber's letter was "never actually mailed or delivered," offers no explanation as to how it came into the Board's possession.
3 The term "preliminary," as it is used in KRS 61.878(1)((j), refers to nonfinal recommendations and opinions as opposed to the term "draft," as it is used in KRS 61.878(1)(i), which refers to a preliminary version of a formal and final document, a written work in progress. The disputed letter in this appeal was not a draft, within the meaning of KRS 61.878(1)(i), insofar as it was formalized and finalized, but was a written expression of opinion and recommendation that was not adopted as the basis of final action and it therefore retained its preliminary characterization.