Request By:
Mr. Laurence J. Zielke
Director of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
The Courier Journal and Times Company by their attorney, John L. Fleischaker, has appealed to the Attorney General the denial of a record by the City of Louisville pursuant to KRS 61.880. The record in question is the appointment calendar of Mayor William B. Stansbury. We have at hand persuasive memoranda from you and Mr. Fleischaker which we have carefully considered in our efforts to arrive at the proper conclusion.
In trying to determine exactly what type of record is in question, we have called you by telephone and you stated that the Mayor's appointment calendar covers the Mayor's appointments on a 24-hour-a-day basis. On the other hand, Mr. Fleischaker stated, "The information contained in the appointment book maintained by the Mayor of the City of Louisville presumably is simply a list of names and the date they met or were to meet with the Mayor." Since the Mayor does not have set duty hours, as does a policeman, for example, we are assuming that the appointment calendar covers the Mayor's appointments both of an official and of a private nature.
The question presented is on top-dead-center of the Open Records Law. The way it is answered will have practical implications for many public officials and employees. You have indicated in writing that the City of Louisville will abide by whatever decision is made by the Attorney General. This increases the burden upon us in making the decision, although the burden is already heavy because any opinion we issue will be cited as a precedent. Considering all these matters, we have arrived at the opinion that the Mayor's appointment calendar is properly being withheld from public inspection.
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection. We believe that the Mayor's appointment calendar is of such a nature. Although the appointment calendar contains a record of activities and contacts by the Mayor, a record which his office will probably want to keep on file for sometime, we nevertheless believe that it is nothing more than a work paper, a preliminary draft, notebook or memorandum.
In addition to being exempt from public inspection under KRS 61.878(1)(g)(h) we believe that the Mayor's appointment calendar is also exempt under KRS 61.878(1)(a) which reads:
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
We think that this exemption particularly applies to a document which covers 24 hours a day of the Mayor's activities. We think that the Mayor has a certain right of privacy in his calendar. We also think that persons who call upon the Mayor in his office or who meet the Mayor at other places on official business, socially, politically or otherwise, have a right of privacy as to their contact with the Mayor.
While the right of privacy is not expressed in the Constitution, it is implicit in the Bill of Rights and the basic civil rights of man. In the case of
City of Carmel-by-the-Sea v. Young, Cal., 466 P.2d 225, 37 ALR 3d 1313 (1970) the Court said:
"[A] governmental agency which would require a waiver of constitutional rights as a condition of public employment must demonstrate: (1) that the political restraints rationally relate to the enhancement of the public service, (2) that the benefits which the public gains by the restraints outweigh the resulting impairment of constitutional rights, and (3) that no alternatives less subsersive of constitutional rights are available. . . . Although an individual can claim no constitutional right to obtain public employment or to receive any other publicly conferred benefit, the government cannot condition admission to such employment or receipt of such benefits upon any terms that it may choose to impose." 37 ALR 3d 1319.
We believe that the Legislature enacted the privacy exemption for the purpose of protecting the principles set forth above.
In taking this position on a mayor's appointment calendar, we want to make it clear that we have not changed our opinion as to the public's right of access to daily records made by police departments such as "police blotters", daily incident reports (OAG 77-102) or accident reports (OAG 76-478) or any other record which officially records the daily activities of a public agency. The distinguishing factor is that the Mayor's personal calendar is personal to him as the Chief Executive of the City and does not record the official acts of the city governmental administration.