Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Mason County Schools violated the Kentucky Open Records Act in denying Jeffrey L. Allison's November 17, 2013, request for "any and all information of your investigation concerning the incident that occurred on Monday[, October 14, 2013,] at Fleming County High School football field, which is in Flemingsburg, Kentucky[.]" In a timely written response, Superintendent Rick L. Ross advised Mr. Allison "there are no records to disclose. The investigation was mainly oral interviews. The only written records are exempt under KRS 61.87[8(1)](i) as preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " Noting that Superintendent Ross mistakenly cited KRS 61.871 instead of 61.878, 1 Mr. Allison subsequently initiated this appeal via facsimile transmission received on December 9, 2013.
Upon receiving notification of Mr. Allison's appeal from this office, M. Susan Brammer, of Royse, Zweigart, Kirk, Brammer & Caudill, responded on behalf of the Mason County Schools. Ms. Brammer reiterated that the only existing "written records" consist of e-mails "from private individuals notifying school officials that the incident occurred. Central Office staff then interviewed witnesses. The interviews were oral. The e-mails received from private individuals are exempted under KRS 61.878(1)(i)." Having reviewed the minimal number of documents responsive to Mr. Allison's November 17 request in camera , under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, which consist entirely of e-mails between school officials and were not sent by or directed to "private individuals," 2 this office must conclude that KRS 61.878(1)(i) is facially inapplicable. Even assuming the agency had also invoked KRS 61.878(1)(j), and the e-mail (s) containing recommendations and opinions could otherwise be properly withheld on that basis, that e-mail (s) forfeited its preliminary status to the extent said recommendations were adopted in part as the basis of the agency's October 21, 2013, final action. 3
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). "Despite its manifest intention to enact a disclosure statute," however, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." 4
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995).
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
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"). 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 83-405, 84-98, 88-2, and 89-69. City of Louisville, above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, remain controlling. See 97-ORD-168, pp. 2-7; see also 07-ORD-158. Compare 01-ORD-47 and 01-ORD-83.
Regarding the underlying rationale of these statutory exceptions, the Attorney General has recognized that "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. As evidenced by a review of the relevant authorities, that rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. In dissecting the language of KRS 61.878(1)(i) specifically, this office has consistently recognized that a "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 97-ORD-183, p. 4; 09-ORD-041. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4; 09-ORD-041.
In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to 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." Id., p. 2. This exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. Rather, "[w]ritings 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; see 07-ORD-181; 12-ORD-134. If a record cannot be properly characterized as correspondence with a private individual, "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7. Simply put, "we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if [,as in this case,] the first part of the analysis, requiring that the disputed record consist of correspondence, is not met." Id.
In 05-ORD-280, this office analyzed a series of then recent decisions involving access to intra/interagency e-mails, applying these authorities in contrasting the "conversational-type communications" at issue in 05-ORD-144, 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 and 05-ORD-221. 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)(j) and were protected from disclosure unless adopted as the basis for any final action by the agency. See 12-ORD-075 (e-mails consisting of political humor, sports commentary, discussions regarding lunch, vacations, etc. are not documents to which KRS 61.878(1)(i) and (j) extend protection). This office reviewed the subject emails in each case, produced for in camera inspection, "through the prism of the Kentucky Open Records Act and not in light of [prior] or subsequent disclosures through other legal mechanisms." 05-ORD-144, p. 5.
Our independent review of the six e-mails in dispute reveals that none can be properly characterized as either "drafts" or "notes" according to the "common and approved uses" of those terms. KRS 446.080(4). Nor does the agency make that claim. However, the final clause upon which the agency relied exclusively, both initially and on appeal, is facially inapplicable. See 13-ORD-051 (KRS 61.878(1)(i) was inapplicable on those occasions where action was requested or anticipated in response to such correspondence and relative to e-mails consisting of communications between two public officials). This office is precluded from relaying the content of the e-mails, but is able to confirm that all of the subject e-mails involved only representatives of the Mason County Schools, i.e. , Superintendent Ross, Mason County High School Principal Steve Appleman, MCHS Football Coach David Buchanan, Coach Larry Harris, members of the Mason County School Board, Guidance Counselor Erin Neal, etc. rather than "private individuals." See 04-ORD-244 (holding that three Athletic Directors of public schools were public employees, not private citizens, and correspondence between them and KHSAA was not exempt from disclosure under KRS 61.878(1)(i)); 09-ORD-041 ("It stands to reason that KRS 61.878(1)(i) does not extend to correspondence exchanged between representatives of public agencies. . . .).
Further, two of the six e-mails are properly characterized as thank you messages and were so entitled in their subject captions; accordingly, neither KRS 61.878(1)(i) nor 61.878(1)(j) apply to said e-mails. 05-ORD-144 (Examples of non-exempt e-mails include a work order for repairs to an office, 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). The October 14 e-mail from Coach Buchanan unquestionably contains recommendations and opinions; however, at least some of those recommendations appear to have been adopted as part of the basis for the October 21 final action of the agency. To that extent his e-mail forfeited its preliminary status and is not exempt. Any recommendations or opinions that were not so adopted, whether contained in that e-mail or the firsthand account of the incident provided in a different e-mail by a different employee of the Mason County Schools, may be properly redacted under authority of KRS 61.878(1)(j) and 61.878(4). Based upon the foregoing, this office must conclude that none of the subject e-mails fall within the parameters of KRS 61.878(1)(i) and the agency's reliance on that exception was misplaced.
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:
Jeffrey L. AllisonRick L. RossM. Sue Brammer
Footnotes
Footnotes
1 The agency corrected this error on appeal.
2 Unable to resolve the question of whether the subject e-mails fall within the parameters of KRS 61.878(1)(i) given the limited evidence presented, this office asked Ms. Brammer to provide us with copies of the records for purposes of in camera review per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3; she promptly complied, reiterating that said e-mails are the only existing responsive documents.
3 By letter dated October 21, 2013, Ms. Brammer notified Mr. Allison that her firm represents the Mason County Board of Education and that he is "not to be on the Mason County School grounds or attend any Mason County School activities. If you do appear on the school grounds, we have instructed the school officials to immediately call the police and report you for trespassing." This action was taken following the October 14 confrontation with a Mason County coach during which Mr. Allison used "racial slurs" in front of students.
4 Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.