Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : Finance and Administration Cabinet properly withheld records of meetings of the Technology Advisory Council as preliminary, except those portions of the records identifying the members of the Council that are not preliminary and must be released.
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet ("Cabinet") violated the Open Records Act in denying Courier-Journal reporter Alfred Miller's February 25, 2019, request for minutes of the Technology Advisory Council ("TAC"). For the reasons stated below, we find that the Cabinet did not violate the Act in withholding the preliminary portions of the requested records, but violated the Act by failing to provide the nonexempt, non-preliminary portions of the records that identified the members of the TAC.
On February 25, 2019, Mr. Miller, submitted an open records request to the Finance and Administration Cabinet seeking "the minutes of the past meetings of the Technology Advisory Council, and/or any other records identifying the members of the Technology Advisory Council." On February 28, 2019, the Cabinet responded, indicating that it had "no documents responsive to [the] request." The Cabinet further stated that the Technology Advisory Council "is the name of the group of state employees who attend a staff meeting with the Commonwealth Office of Technology CIO. This is an internal staff meeting to which the Open Records Act does not apply." After additional communications between Mr. Miller and the Cabinet, the Cabinet issued the following clarification on April 19, 2019:
Preliminary Records . "Despite 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 [those identified at KRS 61.878(1)(i) and (j)]." 1
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). Kentucky 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 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times , 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 under subsections [(i)] and [(j)] of the Act");
Univ. 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); see 99-ORD-220; 11-ORD-052.
The Kentucky Court of Appeals reaffirmed this controlling line of authority in
Univ. of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. 2013), (holding that e-mails between public employees prior to a scheduled meeting that was being held to discuss a matter still under negotiation qualified for protection under KRS 61.878(1)(i) and (j) as "piecemeal disclosure along the path of the decision making process is not mandatory"). See 02-ORD-18 (holding that witness transcripts and investigative summaries fall within KRS 61.878(1)(i) and (j), "unless adopted . . . as the basis of final action" as the Attorney General is "not prepared to read into [the case law], a distinction between records within the investigative file that the Court of Appeals did not make in [ City of Louisville ]"); 14-ORD-024. 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. That rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id .; 14-ORD-230.
This office is not permitted to reveal the content of the records provided for in camera review per KRS 61.880(2)(c), but we may safely describe the records as containing reports and concerns from the 11 executive branch cabinets, the Office of the State Budget Director, and the Governor's Office on information technology-related issues, and reports from various officials within the Commonwealth Office of Technology on initiatives and concerns within that office. The TAC website states that it "advises the State CIO on implementation and management of strategic IT initiatives that maximize business value in support of service delivery while protecting the data and network resources that allow state government to operate." Our review of the records revealed that the TAC does not appear to have gone beyond its stated purpose of advising the CIO. Our review found no instance where the TAC took final action on any issue.
In 96-ORD-205 this office affirmed the denial by the Energy and Environment Cabinet (then identified as the "Natural Resources and Environmental Protection Cabinet") of a request for certain documents, including a multimedia inspection report, preliminary copies of laboratory reports, and records of communications between Cabinet personnel and others, relating to a Notice of Violation issued to A.K. Steel Coke Plant for violations of KRS Chapter 224 based on the presence of hazardous waste or benzene contaminated soil at the plant. This office agreed that disclosure of communications "of this nature would chill the free flow of information between the component parts of the Cabinet," restraining Cabinet officials "from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts, notes, and preliminary comments thrown into the public arena as if they were 'final action of a public agency.'" 96-ORD-205, p. 4; 14-ORD-014.
Just as in 96-ORD-205, we find that disclosure of a portion of the records at issue "would chill the free flow of information between the component parts of the [TAC]," restraining state government officials from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts, notes, and preliminary comments thrown into the public arena as if they were 'final action of a public agency.'" The instant appeal presents no basis to depart from the line of controlling legal authority outlined above, pursuant to which the documents remaining in dispute "retain their preliminary characterization unless adopted, in whole or in part, as the basis of the agency's final action." 13-ORD-138, p. 6; 08-ORD-098; 15-ORD-173. The denial, except as set forth below, is affirmed on the bases of KRS 61.878(1)(i) and (j).
Records Identifying the Members of the TAC : In addition to requesting the "minutes" of past TAC meetings, Appellant also requested "and/or any other records identifying the members of the TAC." We find that the portions of the records identifying the attendees are not preliminary and were no properly withheld. Release of the identifying information would not prevent state government officials "from theorizing, questioning, hypothesizing, or commenting in regard to their assigned duties for fear of having their drafts, notes, and preliminary comments thrown into the public arena as if they were 'final action of a public agency.'" KRS 61.878(4) provides that "if any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." The Cabinet is thus required to separate the preliminary material in the meeting notes from the identifying information of the members and make the nonexcepted portions available. Accordingly, in failing to redact material that is exempt as preliminary from documents and provide the nonexempt portions of the documents, the Cabinet violated the Open Records Act.
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 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 Among the public records that may be excluded from public inspection in the absence of a court order are documents identified at KRS 61.878(1)(i) and (j), respectively, as:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; and
(j) Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]