Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Sanitation District No. 1 violated the Kentucky Open Records Act in partially denying Gailen W. Bridges' January 28, 2011, request for the "billing records of James Parsons & James Wolterman[n] (attys[.]) regarding anything involving Gailen Bridges, or any other atty. that dealt with his matters" and "copies of all writings, emails, [and] memos, of anyone at SD1 that dealt with matters involving Gailen Bridges." SD1 provided Mr. Bridges with copies of the requested attorney billing records prior to his March 11, 2011, appeal, in which Mr. Bridges acknowledged that disclosure as well as the "exception for attorney-client communications," upon which SD1 relied in partially denying his request by letter dated February 11, 2011. 1 Accordingly, our analysis focuses exclusively on whether SD1 properly withheld certain responsive e-mails "containing preliminary discussions involving what course of action to take with regard to the various matters [Mr. Bridges] had with SD1" on the basis of KRS 61.878(1)(j). Having reviewed those documents in camera (all of which are e-mails, including some attachments) , as well as the final actions taken by SD1 (disclosed to Mr. Bridges), under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, 2 this office finds that SD1's reliance on this provision was misplaced as to e-mails which either cannot be properly characterized as recommendations or memoranda, or which are recommendations or memoranda but forfeited preliminary status to the extent adopted, whether explicitly or implicitly, as the basis or a part of the agency's final action. 3
On appeal, Mr. Bridges disputed the characterization of the subject e-mails by SD1, noting that in June 2009 he "had a billing dispute with SD1 on which all communication ceased within a couple of months." In June 2010 he "had another billing dispute with them and all communications ceased several months ago. SD1 has not taken any action that they intended to take years or months in the past on these matters and I do not know of any outstanding matters in which there is any type of ongoing process." Mr. Bridges' view is that documents nearly two years old cannot be properly characterized as "preliminary." SD1, on the other hand, asserted through its legal counsel, Gerald F. Dusing, that its decision to withhold these documents 4 "was not made in bad faith or with the intent of abusing the Open Records Act. Rather, the documents were withheld in order to promote and preserve the right of SD1 employees to communicate freely while engaged in the decision-making process." In support of its position SD1 relied upon
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994),
Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), and prior decisions by this office applying KRS 61.878(1)(j) and those authorities. SD1 recognized that "just because an e-mail is between two employees, it does not constitute a preliminary recommendation" and noted that it disclosed 300 pages of documents, including "internal emails between SD1 employees," to Mr. Bridges.
Mr. Bridges' argument fails to recognize that documents retain their preliminary character unless and until adopted as the basis or a part of the final action by the agency regardless of how much time has gone by; however, SD1's argument fails to recognize that our analysis does not end with a determination that documents are preliminary in character, but instead also requires a determination of whether such documents, or portions thereof, were ultimately adopted as the basis or a part of the agency's final action. Based upon the following, this office finds that SD1 properly withheld 14 pages of e-mails in their entirety, but should have disclosed at least portions of another 26 pages, and the remaining 59 pages in their entirety. 5 This office is returning the subject e-mails to SD1 with a copy of this decision for closer scrutiny in light of the authorities referenced herein and partial disclosure consistent therewith. Each page is numbered in the upper right-hand corner in red ink and corresponds to the index which appears at the conclusion of this decision. Review of the e-mails in dispute confirmed that many are, in part at least, "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, " and thus fall within the parameters of KRS 61.878(1)(j); however, many cannot be properly characterized as either kind of record or formed the basis for the agency's final action, thereby forfeiting their preliminary status to that extent.
In resolving the question presented, this office 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," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). Nevertheless, the Attorney General has also consistently recognized 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 or recommended. " KRS 61.878(1)[(i) and (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 government confidentiality.
Beckham, above, at 577-578; See
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" ). Both the courts and this office have construed the language of KRS 61.878(1)(j), upon which SD1 relied (as well as (1)(i), which it did not invoke), in various contexts.
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action") (emphasis added). See 99-ORD-220; 02-ORD-86; 07-ORD-156.
Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action. See OAGs 88-2, 83-405, 84-98, and 89-69. Each of the cited opinions was premised on the notion that "[r]ecords which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records. " 97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11. City of Louisville, the seminal case on this issue, and its progeny, 6 including the subsequent line of opinions/ decisions by this office, are controlling on the facts presented. See, in particular, 97-ORD-168, pp. 2-7. Compare 01-ORD-83 and 01-ORD-47. 7
Significantly, in 05-ORD-280 (copy enclosed) this office analyzed a series of then recent decisions involving access to interagency e-mails, applying these authorities in contrasting the "conversational-type communications" at issue in 05-ORD-144 (copy enclosed) , 8 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 (copy enclosed) and 05-ORD-221 (copy enclosed) . In the latter decisions, the Attorney General affirmed the denials of access only as to e-mails containing recommendations and opinions, concluding that such e-mails fell squarely within the parameters of KRS 61.878(1)(i) and (j) and were protected from disclosure unless adopted as the basis for any final action by the agency. The instant appeal presents no reason to depart from these governing precedents.
Although this office cannot reveal the exact contents of the 99 pages withheld, they can be generally described as e-mail communications between or among the Director, General Counsel, outside legal counsel, and/or various personnel at SD1 relating to each of the requests made by Mr. Bridges under the Open Records Act during the specified time frame, his complaint to the OAG/Consumer Protection Division regarding his billing dispute, and his question regarding the procedure for submitting a customer complaint. Inasmuch as portions of 26 pages withheld consist of mere factual updates (however brief), gratuitous commentary, questions (not answers thereto which do contain recommendations) or the exchange of information, as opposed to being subjective in the nature of recommendations or opinions regarding the underlying request or complaint and the agency's response thereto, KRS 61.878(1)(j) does not extend protection to them. Conversely, SD1 is entitled to withhold those portions of the same e-mails (most of the e-mail in some cases) which contain recommendations and opinions not adopted as the basis of the agency's final action, but is required to "separate the excepted and make the nonexcepted material available for examination" per KRS 61.878(4). The 14 pages identified as "Exempt" on the enclosed index contain opinions and recommendations which SD1 did not adopt as part of the final action by the agency regarding the request or complaint being discussed and were thus properly withheld on the basis of KRS 61.878(1)(j). However, SD1 improperly withheld the remaining 59 pages. Although some of those pages consist of draft versions of the final action (s) taken by SD1, in each of those cases the agency either adopted the draft verbatim, or with very slight modification, thereby adopting it as the basis or part of the final action taken, and the draft forfeited its preliminary character to that extent. To hold otherwise would contravene the rule of strict construction found at KRS 61.871, the judicial recognition that the Act "exhibits a bias favoring disclosure, " Kentucky Board of Examiners, above, at 327, and governing legal precedents by the courts and this office.
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.
Distributed to:
Gailen W. BridgesGerald F. Dusing
Footnotes
Footnotes
1 Although Mr. Bridges failed to include a copy of the letter with his appeal, SD1 initially responded to his request in a timely manner by letter dated January 31, 2011, explaining that it had "recently transitioned to a new email system. Accordingly, in order to fully comply with your request, it will need to perform searches under the current and old email system[s]. Once the responsive documents have been identified an examination will be made as to whether any documents are exempt under KRS 61.878." SD1 further advised that it anticipated being able to provide any responsive documents by February 10, 2011. Inasmuch as SD1 cited KRS 61.872(5), and provided a sufficiently detailed explanation of the cause for delay as well as the date when the records would be available, this office finds that SD1 discharged its procedural obligations under the Act.
2 The undersigned counsel made this request by letter dated March 21, 2011, and Mr. Dusing responded in a timely manner by letter dated March 24, 2011, enclosing a CD containing an unredacted copy of the e-mails (and documents attached) withheld as well as the final actions by the agency regarding those documents.
3 The final actions taken here appear to consist of the following: 1) SD1's July 29, 2009, response to Mr. Bridges' July 20, 2009, e-mail and July 28, 2009, written request for public records; 2) a letter (plus attachments) from Amanda Waters, SD1 General Counsel, to Investigator Paul M. Wingate, Office of the Attorney General, Consumer Protection Division, dated August 4, 2009, which responded to his letter of July 30, 2009, concerning Mr. Bridges' complaint requesting that SD1 "properly advertise and inform the public of their rates and refund all those who paid the pending rates instead of [sic] what is advertised as current rates"; a letter dated October 1, 2009, from Kathy Jenisch, SD1 Administrative Assistant/Office Manager, to Mr. Bridges in response to his e-mail request for certain records and information dated September 28, 2009; and a series of e-mails (including attachments) between SD1 and Mr. Bridges exchanged between June 30, 2009, and October 28, 2009, copies of which SD1 already provided to Mr. Bridges in response to his January 28, 2011, request.
4 According to SD1 the documents "included draft copies of correspondence in which SD1 employees made notes, revisions, and edits. Also withheld were internal email correspondence between SD1 employees regarding possible courses of action to take with regard to various issues relating to Bridges." Although SD1 should have also invoked KRS 61.878(1) (i), as to any e-mails/ documents which constituted drafts, rather than recommendations or memoranda, the index enclosed with our decision identifies the draft copies of correspondence as being exempt if not ultimately adopted as the basis for any final action. SD1 staff "expressed opinions, made recommendations, and otherwise participated in [the] process of formulating the final agency actions taken by SD1" in the subject e-mails according to its legal counsel. Again, the analysis does not end there. To the extent said opinions and recommendations did not ultimately form the basis for any final action, this office has attempted to identify as exempt and the others must be disclosed.
5 This office numbered the pages individually rather than separating e-mail threads in the hopes of ensuring clarity. Consequently, parts of many e-mails, including the requests by Mr. Bridges that were forwarded among SD1 staff, are repetitive. The page that should have been identified as page 4 has been identified as page 99 because it was inadvertently skipped initially (contains only the contact information for Ron Schmitt, Jr., SD1 Director of Finance and Account Services, with no substantive content and is therefore non-exempt).
6 None of these prior opinions by the Court were addressed or modified in Baker v. Jones, upon which SD1 partially relied, and thus were presumably deemed consistent to the extent implicated.
7 In 01-ORD-83, this office rejected the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, noting that "adopt" is not synonymous with "incorporate," and "the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." Id., pp. 13-14. To the extent prior decisions were inconsistent with this view, those decisions were modified. Significantly, in so doing this office concluded that when preliminary reports and records "are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed." Id., p. 14 (emphasis added).
8 Non-exempt e-mails included, for example, "jokes, poems, lunch inquiries, and commentary regarding information," as well as "non-policy fact-based communications" such as a work order for office repairs, a thank-you note, a request for review and signature, an update on the status of a project, a thought for the day, and a vacation announcement. 05-ORD-144, p. 9 (emphasis added).