Request By:
Mr. Stephen Towler
Superintendent
Hardin County Schools
110 South Main Street
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Laurie L. Ogle, an education reporter for the News-Enterprise , has appealed to the Attorney General pursuant to KRS 61.880 your denial of her May 1, 1991, request for copies of certain documents in the possession of the Hardin County Schools. These documents are identified as the Hardin County Schools' central office administration's recommendations on salary increases for all employees of the system for fiscal year 1991-92, and "all documents including (but not limited to) monthly financial statements, working budgets, and other supporting data and materials compiled for the board prior to each special and regular board meeting. "
You denied Ms. Ogle's request in a letter dated May 6, 1991, explaining that in your view the central office administration's recommendations on salary increases is exempt under KRS 61.878(1)(h) inasmuch as it is "a preliminary report which expresses recommendations and opinions and is not a final action of the Board." With respect to Ms. Ogle's request for "media packets of agenda item materials to be discussed and/or acted upon in open sessions of the board of education, " you stated:
At this time, I can neither release nor withhold any materials based on [this] request. You have made an on-going request for information and have not made a specific request for inspection of a document. Pursuant to the spirit of OAG 87-84, if you have a specific document you wish to inspect, you may do so and such request will receive prompt attention.
In her letter of appeal to this Office, Ms. Ogle argues that The News-Enterprise "believes access to these documents is vital to the public's interest because it is the public's business to know what its elected officials are considering for approval." Continuing, she observes:
The News-Enterprise believes once these documents are in the possession of elected school board members -- to be used as the basis for making decisions in open session of the board -- they are indeed public.
. . . Mr. Towler is using arbitrary methods to determine what may be released to the media (public) before board meetings. He will release certain items that will be acted upon, such as bids for equipment, and exclude others. We believe his actions fly in the face of democracy because he is deciding for the public what they have the right to know.
Ms. Ogle asks that we review your denial of her request to determine if your actions were consistent with the Open Records Law. For the reasons set forth below, we conclude that you properly denied Ms. Ogle's request.
OPINION OF THE ATTORNEY GENERAL
Although this Office has repeatedly held that the salaries of public employees, including employees of public schools, are public records subject to inspection, OAG 78-837; OAG 87-76, OAG 88-13; OAG 90-30, we have also acknowledged that recommendations made to a board of education with regard to employee salary raises are exempt from inspection under KRS 61.878(1)(h), until such time as they are acted upon and adopted by the board. OAG 79-469. This position is consistent with the rule announced in a number of opinions involving the propriety of withholding documents containing preliminary recommendations and memoranda submitted to school boards.
In OAG 79-326, we stated that proposals and counterproposals submitted in the negotiation process by a school board and an organization representing teacher employees of the board are not open to public inspection because they contain preliminary recommendations and preliminary memoranda. For this reason, they are exempt under KRS 61.878(1)(h).
Similarly, in OAG 86-42, we held that the McCracken County Board of Education properly withheld "orders of the treasurer" submitted to the board for approval at its regular meetings. In that opinion, we reasoned:
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. . . .
OAG 86-42, at p.4, citing City of Louisville v. The Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982).
In OAG 86-54, we ruled that an "administrative memorandum" prepared by the superintendent for submission to the board is not a public record until it is incorporated into a final action by the board. Echoing our earlier position, we opined:
The 'Administrative Memorandum, ' which is basically a written communication from the superintendent to the members of the school board, setting forth the superintendent's proposals and recommendations concerning numerous items to be considered at the school board's upcoming meeting, is not the agenda for that meeting. It is an intradepartmental or intraagency memorandum in which opinions are expressed and proposals and recommendations are made.
OAG 86-54, at p.3.
Finally, in OAG 87-23, we sustained the decision of a board of education to withhold documents pertaining to an investigation of a teacher, consisting of preliminary recommendations and preliminary memoranda in which opinions are expressed. There we indicated that because the documents did not represent the final decision of the board and the superintendent relative to the teacher in question, they were properly withheld.
These opinions clearly demonstrate that the Hardin County Schools may refuse to release its recommendations on salary increases under KRS 61.878(1)(h). The requested documents fit squarely within this exception. If upon final action of the school board, these recommendations are adopted, they will become public records and must be made available for inspection.
With respect to Ms. Ogle's request for "media packets of agenda-item materials," including, but not limited to, monthly financial statements, working budgets and other supporting data, we find that you properly acknowledged your obligation to make available to the public the agenda prepared for board meetings. OAG 77-221; OAG 86-54. We further find that you were correct in your refusal to issue a blanket release of documents to be used by the Board in futuro. While it is true that much of the requested material becomes public record upon board approval, including monthly financial reports and budgets, OAG 83-166; OAG 86-54, other materials may be exempt. A "standing request" for all documents compiled by the Hardin County Schools for use by the board may properly be denied on the grounds that it fails to reasonably identify the records sought. While the purpose and intent of the Open Records Act is to permit the "free and open examination of public records, " the right of access is not absolute. KRS 61.882(4). As a pre-condition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58.
Moreover, Ms. Ogle requests that she be furnished with copies of the identified documents. In OAG 81-212 we stated that the Open Records Act does not require a public agency to provide copies of documents. The right to copy is ancillary to the right to inspect. KRS 61.874(1); OAG 76-375; OAG 82-629; OAG 83-42; OAG 83-204; OAG 86-54. Clearly, a requester cannot require a public agency to provide copies of documents that have not yet been prepared. OAG 86-54.
We therefore conclude that you properly denied Ms. Ogle's request for copies of the Hardin County Schools' central office administration's recommendations on salary increase and "media packets of agenda-item materials." As required by statute, a copy of this opinion will be sent to the requesting party, who may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).