Request By:
Mr. John J. Slattery, Jr.
General Counsel
Kentucky Education Association
101 West Walnut Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As General Counsel of the Kentucky Education Association you have requested an opinion of the Attorney General pertaining to the Kentucky Open Meetings Law, KRS 61.805-61.850, and the Kentucky Open Records Law, KRS 61.870-61.884. Your question is whether proposals and counterproposals submitted in the negotiating process by a school board and an organization representing teacher employees of the board are required by the Open Records Law to be made available for public inspection.
We think that such proposals and counterproposals are not required to be open to public inspection because of the exemptions provided by KRS 61.878(1)(g) and (h). These provisions exempt preliminary drafts, notes, correspondence with private individuals and preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Besides this provision of the Open Records Law, it is provided in the Open Meetings Law that collective bargaining negotiations between public employers and their employees or their representatives shall be exempt from the requirement of an open meeting. We believe that if oral negotiations are exempt, it naturally follows that written proposals which are preliminary in nature will also be exempt.
You also ask as follows: "If the law does not require public inspection of such matters, may either party voluntarily make this information available for public inspection if it wishes to do so?"
The Open Records Law does not provide any mandate against the opening for inspection of any public records, even records which may be exempt from the requirements of being open for inspection. We believe either party may reveal any proposals made by either side in the negotiations. The parties, could, of course, make an agreement between themselves at the outset as to whether proposals made during the negotiations should be made public.
In OAG 79-275 we stated as follows:
"The custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided by KRS 61.878(1)(k)(j) (public records or information the disclosure of which are prohibited by federal law or regulation and public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."