Request By:
Mr. Bill Brown
Superintendent
McCracken County Public Schools
Route #10, Box 1, Bleich Road
Paducah, Kentucky 42001
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mrs. Sharon Cash has appealed to the Attorney General pursuant to KRS 61.880 the denial by the McCracken County Board of Education, through its attorney, Albert Jones, Esq., of her request to inspect certain records in the Board's custody. She described the documents in question as "Orders of the Treasurer. "
In her letter to you dated March 12, 1986, Mrs. Cash requested that "you supply to us, three copies each month of the 'Orders of the Treasurer. '" Her letter was referred to the Board of Education's attorney.
In a letter to Mrs. Cash, dated March 21, 1986, a copy of which should have been sent to the Attorney General pursuant to KRS 61.880(2), Mr. Jones denied Mrs. Cash's request to inspect the "Orders of the Treasurer. " Mr. Jones said in part as follows in that letter:
"The Orders of the Treasurer which you desire prior to being acted on by the McCracken County Board of Education are not public records. They will become public records when they are acted on by the Board. Until such time, they are working materials being utilized by the Board and the administrative staff in conducting the business of the schools."
In her letter of appeal to this office Mrs. Cash raises several other matters which were either not set forth in her letter to you dated March 12, 1986, or cannot be considered in connection with an appeal under the Open Records Act. One of those related to a failure of various school system personnel to meet with an organization with which she is associated. That is not an appropriate subject under an appeal pertaining to a denial of a request to inspect public records and will not be considered in this opinion.
Other topics in Mrs. Cash's letter which might possibly be the subjects of future appeals under the Open Records Act will not be considered at this time as those matters have not been, as far as can be determined, formally presented to the school system and the school system, therefore, has not been given the opportunity to respond to those requests. Thus, this opinion will be confined to the matter of the public availability of "Orders of the Treasurer" under the Open Records Act (KRS 61.870 to KRS 61.884).
The undersigned Assistant Attorney General talked with you by telephone on the morning of June 25, 1986. You stated that "Orders of the Treasurer" are not the actual bills received by the school system's treasurer but a listing of accounts payable prepared for submission to and approval by the McCracken County School Board at its regular and special meetings. They consist of computer printouts and typewritten pages and are prepared primarily for the use of the school board. They set forth various details relative to supplies and services utilized by the school system. After the school board has approved the "Orders of the Treasurer" for payment they become public records and are copied verbatim into the minutes of the school board's meeting.
OPINION OF THE ATTORNEY GENERAL
The question to be resolved here is when the "Orders of the Treasurer" become available for public inspection. Rather than an outright denial of a request to inspect public records, the issue in this situation involves the timing of the release of the records. The requesting party wants such documents immediately upon their preparation while you and the Board's attorney maintain that these matters are preliminary and not available for public inspection until after the Board has taken action relative to them at one of its meetings.
Among the documents which may be excluded from public inspection by a public agency in the absence of a court order permitting inspection are those set forth in KRS 61.878(1)(g) and (h):
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 81-291, copy enclosed, at pages 2-3, we stated that bills, purchase orders, purchase requisitions and purchase contracts are business records of a school or university. These kinds of records are not covered by any of the exceptions to public inspection set forth in KRS 61.878(1) and should, therefore, be made available for public inspection.
In this particular situation we are not, however, dealing with the actual bills received by the school system. Involved here are "Orders of the Treasurer" prepared by the school system's treasurer from the bills received by the school system, containing a somewhat comprehensive analysis of the particular products or services received, for the use of the school board members and their administrative staff in connection with the school board's bill approval process.
From the time of the initial preparation of the "Orders of the Treasurer" until that time when the school board formally considers them at a regular or special meeting and authorizes payment, such records would have the status of preliminary drafts, recommendations and memoranda of the treasurer and could be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h).
Once the school board has taken formal action on the "Orders of the Treasurer" at a regular or special board meeting, and particularly where it has directed that such orders be incorporated into the minutes of the school board, those orders then lose their preliminary characterization and would be subject to public inspection. In
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982) the Court dealt with the status of an internal investigative report of a police department which had been submitted to the Chief of Police for a final decision. At page 659 of its decision the Court said in part as follows:
"Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."
It is, therefore, the opinion of the Attorney General that the "Orders of the Treasurer, " which are not the actual bills received by the school system but documents prepared by the treasurer primarily for internal use relative to the school board's bill approval process, retain a preliminary characterization which would permit the school system to refuse public inspection of them, until such time as the school board formally considers such orders and adopts and incorporates as its course of action and final decision the terms, conditions and recommendations contained in those orders.
As required by statute a copy of this opinion is being sent to the requesting party, Mrs. Sharon Cash, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).