Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Western Kentucky Correctional Complex ("WKCC") violated the Open Records Act in partially denying Charles Johnson's April 25, 2018, request for "the e-mail between David Payton and Melissa Hall about my PlayStation. This [occurred] in March." In a timely written response per KRS 197.025(7), dated April 30, 2018, WKCC indicated that it did not locate any e-mails that "you have sent or received." In his May 2, 2018, letter of appeal, Mr. Johnson emphasized that he did not request any e-mails that he sent or that he received.
Upon receiving notification of Mr. Johnson's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of WKCC. Ms. Barker first noted that WKCC realized upon receipt of the appeal that Mr. Johnson was asking for e-mails generated at a different institution. She then acknowledged that WKCC should have notified Mr. Johnson to send his request to Kentucky State Reformatory ("KSR") because it did not possess any e-mails between KSR staff. As a courtesy, Ms. Barker stated, "WKCC staff obtained responsive emails from David Payton at KSR. It has offered a copy of the emails upon payment of the copy cost." WKCC further explained that portions of the emails would be redacted pursuant to KRS 61.878(1)(i) and (j) as preliminary notes, opinions, and recommendations that were not adopted as part of final action by KSR. Ms. Barker indicated that if the aforementioned e-mails were not responsive, Mr. Johnson should write to KSR as instructed in the supplemental response directed to him by WKCC Offender Records Supervisor Wendy Dupriest on May 14, 2018, a copy of which Ms. Barker attached to her appeal response.
WKCC stated the redacted portions of the e-mails "largely contain opinions expressed by two employees. The preliminary character of the redacted items continues since they have not been adopted as part of any final agency action. The opinions are based in part on assumptions." Ms. Barker noted that final action by KSR "has not been taken that would adopt the opinions of the individual employees at this time." In response to a request for clarification, she later stated that some of the opinions would not be adopted in any final action but some "could lead to final action" though "no decision to take the possible action has been made."
By letter dated June 1, 2018, the Attorney General requested, under authority of KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, that WKCC provide this office with a redacted hard copy of the subject e-mails in addition to an original, i.e. , unredacted hard copy for the purpose of in camera review. WKCC promptly complied. On its behalf, Ms. Barker also noted that most of the redacted opinions "are not the type of things that would be adopted by any final agency action. " In addition, she checked the Kentucky Offender Management System ("KOMS") "and no additional disciplinary action or investigation is listed." 1
Among those records excluded from disclosure are those identified at KRS 61.878(1)(i) and (j). 2
Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 577-578 (Ky. 1994);
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) in a variety of contexts but little has changed regarding the relevant analysis. See
City of Louisville v. Courier-Journal and Louisville Times Co. 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983)(recognizing that "documents defined in subsections [(i)] and [(j)] which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded"); 3
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001);
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that certain e-mails fell within KRS 61.878(1)(i) and (j), and retained their preliminary character as the subject meeting did not conclusively resolve the ultimate issue and "piecemeal disclosure along the path of the decision making process is not mandatory"); 4 99-ORD-220; 11-ORD-052; 15-ORD-189; 16-ORD-167.
This office is not permitted to reveal the content of the redacted material. However, our in camera review of the subject e-mails between KSR Unit Administrator Melissa Hall and KSR Fiscal Manager David Payton confirms that Ms. Barker's description is entirely accurate. The e-mails total four pages, all of which WKCC has disclosed with limited exceptions, including approximately 6-7 lines (4 and one-half sentences) from the April 9, 2018, e-mail between Ms. Hall and Adjustment Committee Supervisor Lt. Jayne Hogan (only copied to Mr. Payton). The remaining material withheld consists of a sentence that WKCC redacted from the April 10, 2018, e-mail that Ms. Hall sent to Lt. Hogan (only copied to Mr. Payton). The latter is merely a characterization, i.e. , opinion by Ms. Hall regarding a conversation that she had with Mr. Johnson; the former consists of Lt. Hogan's characterization/ opinion regarding certain actions or events.
Ms. Hall's comment to Lt. Hogan did not prompt action by KSR nor, consequently, did it form the basis of any final action by the agency. Likewise, Ms. Barker enclosed a KOMS printout listing disciplinary violations by Mr. Johnson with her supplemental response, a review of which confirmed that KSR did not take any further disciplinary action, i.e. , no final action has been taken relative to any conduct described in Lt. Hogan's e-mail. Based upon the foregoing, this office finds that WKCC properly withheld the redacted material from the subject e-mails under KRS 61.878(1)(j) "as they retain their preliminary status unless and until adopted, in whole or in part, as the basis for the final action of the agency, whether implicitly or explicitly." 12-ORD-211, pp. 8-9; 01-ORD-47; 08-ORD-098; 15-ORD-202; 17-ORD-202.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 According to Mr. Johnson, he received a "disciplinary report while housed at [KSR] and was convicted of it for possession of stolen property," i.e. , the PlayStation.
2 KRS 61.878(1)(i) and (j), respectively, exclude from disclosure:
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.
3 A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034, p. 11 (quoting City of Louisville, 637 S.W.2d at 660). "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action." 16-ORD-256, p. 4.
4 Final agency action" is understood as "when the ultimate issue to be decided [is] resolved." University of Louisville v. Sharp, 416 S.W.3d at 315; OAG 91-21 (Letter of Intent is not final agency action, because the "incentive package" is subject to negotiation and change until such time as final agreement is reached among the parties); 12-ORD-217 (holding that final action would occur when the fiscal court approved the sale of the property, not upon its approval of a resolution declaring the intent to close the apartment complex); 05-ORD-048; 15-ORD-087; 16-ORD-231