Request By:
Denis B. Fleming, Jr., Esq.
General Counsel
Cabinet for Economic Development
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
Mr. Al Cross has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various records in the custody of the Cabinet for Economic Development.
In a letter to the Cabinet, a copy of which has not been made available to this office, Mr. Cross apparently requested a copy of the list of the Cabinet for Economic Development's nominees to the Rural Economic Development Authority.
You replied to Mr. Cross in a letter dated August 24, 1988, and advised him in part as follows:
" . . . It is my understanding you have requested a list of the Economic Development Cabinet's nominees to the Rural Economic Development Authority (formerly Distressed Counties Authority). As custodian of the records requested and on behalf of the Secretary of the Economic Development Cabinet, I am respectfully denying your request because it seeks records that are of a kind or that contain material enumerated under KRS 61.878.
The provisions of this statute which this agency considers applicable to your request are KRS 61.878(1)(g) and (h). These provisions apply to the records requested because we consider the information contained therein to constitute preliminary recommendations and/or preliminary memoranda. Further, this agency considers the documents requested to be inter-office memoranda and/ or correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. "
In his letter of appeal to this office Mr. Cross takes exception to your reliance upon KRS 61.878(1)(g) and (h) to deny his request. He states that there apparently was a disagreement at the highest levels of state government relative to the appointments to the Authority. He maintains that the public has the right to know the details of the disagreement, especially since the appointments have now been made and the recommendations are, in a sense, moot.
Mr. Cross further maintains that preliminary recommendations should be made public once they have been acted upon as the need for disclosure is greater than the need to withhold the documents. Since the official who made the recommendations has resigned and there have been allegations as to disagreements among various officials, Mr. Cross wants to "see what this was all about."
Assistant Attorney General Thomas R. Emerson talked by telephone with you and Mr. Jerry Frantz of the Cabinet for Economic Development on September 8, 1988. The 1988 Regular Session of the Kentucky General Assembly enacted Senate Bill 280 which was codified as KRS 152.260 to KRS 152.298 (the Kentucky Depressed Counties Economic Development Authority). KRS 152.264(3) provides that the Governor shall appoint five private directors. The Secretary of the Cabinet prepared lists of persons he recommended for appointment to the positions in question. The lists were sent to the Governor's Office and it is copies of these lists that Mr. Cross is seeking.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be withheld from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(g) and (h) as follows:
"(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 88-32, copy enclosed, at page three, we said in part as follows:
"If the materials and documents involved here constitute preliminary intra-office communications setting forth opinions, observations and recommendations of various agency personnel and they do not represent the public agency's final decision or determination on any matter, then they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h) . . . ."
This office, in OAG 87-24, copy enclosed, at page four, concluded as follows:
"Thus, it is the opinion of the Attorney General that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether the Board should or should not grant a parole is a Preliminary document expressing personal opinions and recommendations and not subject to inspection unless incorporated into or made a part of the Parole Board's final decision on the matter."
Finally, in OAG 87-64, copy enclosed, at page three, we said:
"If the departmental memoranda involved here constitute preliminary intraoffice communications setting forth opinions, observations and recommendations of various departmental personnel and they do not represent the department's final decision or determination on any matter then they may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h) . . . ."
In the factual situation involved with this appeal, the Secretary of the Cabinet for Economic Development prepared lists of persons he recommended for appointment to the Depressed Counties Economic Development Authority which he subsequently forwarded to the Governor's Office. The names on these lists were merely his recommendations and involved his personal opinions. There is no statute which mandates that the Governor shall appoint individuals from a list submitted by the Cabinet Secretary or anyone else. Compare KRS 311.530, for example (appointments to the state board of medical licensure). Appointments to this Authority are to be solely the Governor's. He may, of course, seek and obtain recommendations and opinions from his staff, including his cabinet secretaries. The list prepared here appears to be of such nature.
One of the purposes of KRS 61.878(1)(g) and (h) appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently, recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
While the General Assembly has expressed its intent, through the Open Records Act, that generally government documents should be available to the public, and while our office is committed to uphold both the letter and spirit of the Act, we believe that, in this situation, exceptions to the Act, KRS 61.878(1)(g) and (h), apply to the document in question. It is of a preliminary nature and, as an internal memorandum from a subordinate to a supervisor, it expresses recommendations and opinions.
It is, therefore, the opinion of the Attorney General that the agency's denial of a request to inspect this list is supported by KRS 61.878(1)(g) and (h).
As required by statute, a copy of this opinion is being mailed to the requesting party, Mr. Al Cross, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.