23-ORD-326
December 13, 2023
In re: Kim Striegel/Anchorage Independent School District
Summary: The Anchorage Independent School District (“the District”)
did not violate the Open Records Act (“the Act”) when it withheld records
that were preliminary drafts, notes, or correspondence with private
individuals under KRS 61.878(1)(i), or preliminary communications
concerning the planning of a meeting under KRS 61.878(1)(j) that had
not been adopted as the basis of final action. However, the District
subverted the intent of the Act, within the meaning of KRS 61.880(4),
by imposing excessive fees for copies of electronic records. The District
did not violate the Act when it could not provide records that did not yet
exist.
Open Records Decision
On October 9, 2023, Kim Striegel (“Appellant”) submitted a request for “[a]ll
materials that may or will be referenced or used to prepare for and/or during the
October 16, 2023 [school] board meeting; digital format preferred.” In a timely
response on October 16, 2023, the District stated the materials would be available for
inspection the following day, and copies could be obtained at the rate of 10 cents per
page. On November 5, 2023, the Appellant submitted a request for “[a]ll records
prepared for” the school board meeting to occur on November 13, 2023, “including but
not limited to agenda-listed reports, superintendent recommendations, and
supporting documents.” In a timely response, the District denied the request under
KRS 61.878(1)(i) and (j) because the “[d]ocuments and communications concerning
strategies used to plan a meeting, including discussions relating to the invitation and
agenda, are preliminary to resolution of the ultimate issues and as such are exempt
unless they are adopted as the basis of final agency action.” Additionally, the District
stated the requested records “have not yet been prepared, and therefore do not yet
exist.” This appeal followed.The Appellant alleges the District violated the Act in two ways. First, she
argues she should be able to view the requested school board meeting materials before
the meetings occur. Second, she claims the copying fee of 10 cents per page is
excessive because she requested the records in electronic format and the District had
always provided similar records to her electronically prior to September 2023.
On appeal, the District argues it properly relied on KRS 61.878(1)(i) and (j) to
“delay” the Appellant’s access to the records requested in October until after the
October school board meeting. KRS 61.878(1)(i) exempts from disclosure
“[p]reliminary drafts, notes, [and] correspondence with private individuals, other
than correspondence which is intended to give notice of final action of a public
agency.” KRS 61.878(1)(j) exempts from disclosure “[preliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.” However, if a public agency adopts such opinions or
recommendations as the basis of final action, the exempt status of the record is lost.
See Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky.
1992); Univ. of Ky. v. Lexington H-L Services, Inc., 579 S.W.3d 858, 863 (Ky. App.
2018).
The District asserts all materials used to prepare for a school board meeting,
or which “may or will be referenced” at the meeting, are either preliminary drafts,
notes, or correspondence with private individuals under KRS 61.878(1)(i) or
preliminary recommendations or memoranda under KRS 61.878(1)(j) that have not
been adopted as the basis of final action prior to the meeting. Accordingly, the District
does not make such materials available until after the meeting has occurred.
To the extent the requested records are preliminary drafts, notes, or
correspondence with private individuals not intended to give notice of final agency
action, they are exempt from disclosure under KRS 61.878(1)(i). Furthermore, any
communications concerning “strategies used to plan [a] meeting, including
discussions relating to the invitation and agenda, are preliminary to resolution of the
ultimate issue” and thus exempt under KRS 61.878(1)(j) because “the meeting is
merely a step along the road to deciding the ultimate issue.” Univ. of Louisville v.
Sharp, 416 S.W.3d 313, 316 (Ky. App. 2013). Accordingly, such records remain
preliminary unless they are adopted as the basis of final agency action. Id. at 315.
These would include, for example, suggestions for agenda topics and discussions
relating to draft documents. See, e.g., 22-ORD-204.
Here, it is the District’s policy to make the requested records available to the
public after the meeting to which they pertain. Of course, if a particular meeting has
not yet occurred, then the school board has not yet adopted as the basis of final action
any of the preliminary materials prepared for the meeting. A meeting could, forexample, not occur at all if no quorum appears, or the agenda for a regular meeting
could nevertheless change even if the meeting does occur.1 Accordingly, the District
did not violate the Act when it made the preliminary materials for its October 16,
2023, meeting available for inspection after the meeting occurred.
Under KRS 61.880(4), a person requesting records may appeal to the Attorney
General if he believes “the intent of [the Act] is being subverted by an agency short
of denial of inspection, including but not limited to the imposition of excessive fees.”
The Act provides that a “public agency may prescribe a reasonable fee for making
copies of nonexempt public records requested for use for noncommercial purposes
which shall not exceed the actual cost of reproduction, including the costs of the media
and any mechanical processing cost incurred by the public agency, but not including
the cost of staff required.” KRS 61.874(3). A public agency bears the burden of proof
that its copying fees reflect the actual cost of reproduction. KRS 61.880(2)(c).
Under KRS 61.874(2)(a), “[n]onexempt public records used for noncommercial
purposes shall be available for copying in either standard electronic or standard hard
copy format, as designated by the party requesting the records, where the agency
currently maintains the records in electronic format.” Here, the Appellant’s October
request for meeting materials sought copies in an electronic format, and the District
does not deny that the requested records exist in electronic format. While 10 cents
per page is a reasonable fee for hard copies, see Friend v. Rees, 696 S.W.2d 325, 326
(Ky. App. 1985), a public agency may not charge the requester for hard copies when
electronic copies are requested, nor demand that same fee for electronic copies
without substantiating its actual cost. See, e.g., 23-ORD-111. Because the District has
not attempted to establish that reproducing the requested records in electronic
format results in an actual cost to it of 10 cents per page, KRS 61.874(3), it subverted
the intent of the Act by imposing excessive fees within the meaning of KRS 61.880(4).
With regard to the November request, the District advised the Appellant that
the requested records did not yet exist. Once a public agency states affirmatively that
records do not exist, the burden shifts to the requester to present a prima facie case
that the requested records do or should exist. See Bowling v. Lexington–Fayette Urb.
Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the Appellant specifically
requested “records prepared for” a meeting scheduled to occur eight days later. She
has not presented a prima facie case that any such records had been prepared at the
time of her request. A public agency does not violate the Act when it cannot provide
records that do not yet exist. See, e.g., 22-ORD-001. Accordingly, the District did not
violate the Act when it denied the Appellant’s November request.
1
Only “special meetings” are required to adhere to an agenda established at least 24 hours in
advance of the meeting. See KRS 61.823(3).A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#510
Distributed to:
Mrs. Kim Striegel
Mark S. Fenzel, Esq.
Karen Solise, Superintendent
Hannah Barnes, Chair