Request By:
Mr. Jon L. Fleischaker
Wyatt, Grafton & Sloss
Twenty-Eighth Floor, Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As attorney for The Courier Journal and Louisville Times Company, you have appealed to the Attorney General under KRS 61.880 the denial of inspection of a document in the custody of the City of Louisville. The document in question is described as "collective bargaining proposals presented to the City of Louisville by the Fraternal Order of Police and International Association of Firefighters in connection with collective bargaining negotiations currently in process."
The City of Louisville has denied the request by letter dated May 30, 1979, stating that its denial is based upon exceptions set forth in KRS 61.878(1)(g)(h) and an implied exception resulting from KRS 61.810(5) relating to the Open Meetings Law.
Evidentially both sides to the collective bargaining negotiations have agreed to keep proposals and counterproposals confidential while negotiations are in progress. If this were not so, either side could release its proposals to the public without the consent of the other. Evidentially, the agent of your client, Mr. Courtney Barrett, a staff reporter for The Courier Journal has been denied access to subject document by the Employees' Union as well as by the City. The question presented is, therefore, whether the public agency involved is required under the Open Records Law to allow inspection of the document.
The City's position as stated in its letter of denial is as follows:
"The exception to the Open Meetings Law which provides that collective bargaining negotiations are not open to the public necessarily implies that memoranda passed between the parties during such collective bargaining negotiations are exempted from disclosure. If collective bargaining negotiations, which is an exception to the Open Meetings Law, could be made public pursuant to disclosure of all memoranda exchanged between the parties, it would completely emasculate the exception contained at KRS 61.810(5). The Open Records Law itself exempts records for which the disclosure is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, KRS 878 (1)(j). The General Assembly by enactment of the Open Meetings Law made an exception to public disclosure the conduct of collective bargaining negotiations between public employers and their employees, KRS 61.810(5)."
We think that the City's position on this point is well taken. In disagreeing with that position you cite
Jefferson County Board of Education v. Courier Journal, Ky.App. 551 S.W.2d 25 (1977) where it was held that reports or status briefings on labor negotiations made in a meeting of the school board should be open to the public, since the Board was not in the process of negotiations as contemplated by KRS 61.810(5). But the court opinion also includes the following:
"On the other hand, whenever a public agency is formulating its demands or position preparatory to collective bargaining negotiations, either by way of deliberations or instructions to its advocates then we believe these types of sessions are within the purview of KRS 61.810(5)."
By the above quoted statement the appellate court extend the labor negotiations exemption beyond the limits of face to face negotiations between opposing representatives and included preparatory strategy sessions of the public agency held in the absence of the other bargaining party. We think that this exemption also extends to written documents such as notes and recommendations used in the preparatory process, otherwise, the Open Meetings exemption would be nullified.
Besides the Open Meetings connection, we believe that the Open Records Law itself provides exemptions which apply to subject document. The proposals presented to the City by the employee representatives are preliminary drafts as exempt under KRS 61.878(1)(g). The word "proposal" is defined as "an act of putting forward or stating something for consideration; something proposed; suggestion", all of which implies something preliminary. In addition to exemption (g), exemption (h) also covers subject document: "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." Your contention that (g) and (h) deal with "intra-office memoranda" is, we believe, correct. However, we do not believe it to be clear that the legislative intent of the intra-office memoranda. In the sensitive area of labor negotiations, if the parties so desire, we believe that they are authorized to keep their proposals and counter-proposals proposals confidential among the negotiators.
As directed by statute we are sending a copy of this opinion to the City of Louisville.