Request By:
Mr. Ernest A. Jasmin
Commonwealth Attorney
514 West Liberty
Louisville, Kentucky 40202
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of his client, David McKenna, Mr. Charles L. Cunningham, Jr., has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of his October 16, 1991, request to inspect certain documents in the possession of the Commonwealth Attorney's Office. Those records are identified as: (1) Mr. McKenna's personnel file; (2) inter-office memos, notes, and evaluations concerning his duties, performance, or status; (3) any office procedure manual; and (4) correspondence to or from third parties concerning him. Mr. Cunningham explains that Mr. McKenna, a former Assistant Commonwealth Attorney, was dismissed by your office. In support of his argument that Mr. McKenna is entitled to inspect these documents, he cites KRS 61.878(3), which provides state employees with a general right of access to any record which relates to them, regardless of whether the record is exempt or nonexempt.
Although you provided Mr. Cunningham with copies of Mr. McKenna's personnel file and evaluations, you denied that portion of his request pertaining to inter-office memoranda and notes concerning his duties, performance, or status, correspondence to or from third parties concerning him, and the Commonwealth Attorney's Office procedure manual, in a letter dated October 26, 1991. You relied on KRS 61.878(1)(g) and (h), reasoning that these documents represent preliminary drafts and preliminary memoranda in which policies are formulated or recommended. You rejected Mr. Cunningham's invocation of KRS 61.878(3), arguing that Mr. McKenna was not a state employee, but was instead, a county employee, and that therefore, the cited provision has no application.
In his letter of appeal to this Office, Mr. Cunningham expresses the belief that because the commonwealth attorney represents the state, his employees must be treated as "state employees" for purposes of the Open Records law, and particularly, KRS 61.878(3). He cites the Kentucky Court of Appeal's decision in Board of Trustees of Fairview Graded Common School District v. Renfroe, 259 Ky. 644, 83 S.W.2d 27 (1935), for the proposition that a public school teacher is a state employee, arguing that by analogy, a commonwealth attorney is also a state employee.
Mr. Cunningham asks that we review your partial denial of his request to determine if this decision was consistent with the Open Records Act. For the reasons set forth below, we conclude that your actions were only partially consistent with the Open Records Act.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(3) provides that none of the exceptions to the Open Records Act codified at KRS 61.878(1)(a) through (j):
(S)hall be construed to deny, abridge or impede the right of a state employe, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. Such records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A state employe, applicant or eligible shall not have the right to inspect or to copy any examination.
In OAG 91-128 (copy attached), this Office undertook an exhaustive examination of that statute, and concluded, based on the language of the statute when read in historical context, that it applies only to state personnel employed by the executive branch of state government and governed by Chapter 18A of the Kentucky Revised Statutes.
Prior to issuance of that opinion, we had interpreted KRS 61.878(3) on two occasions, each involving state personnel employed by the executive branch. In OAG 87-50, an employee of the Labor Cabinet requested access to her personnel records. The Cabinet denied her request, relying on KRS 61.878(1)(g) and (h). The Attorney General concluded that the Cabinet erred in withholding the requested documents, observing:
No doubt . . . the [requester] could not have seen such preliminary material prior to the 1986 amendment to KRS 61.878 but the statutory amendment specifically states that it overrides any of the exceptions to public inspection set forth in KRS 61.878, at least where a state employee is involved.
OAG 87-50, p. 3. Similarly, in OAG 90-83, we upheld the right of a state employee, in this case an employee of the Tourism Cabinet, to inspect her personnel file. Neither of these appeals reached the issue herein raised: Whether KRS 61.878(3) is applicable to state employees not governed by Chapter 18A of the Kentucky Revised Statutes.
KRS 61.878(3) was enacted by the Kentucky General Assembly in 1986 along with a comprehensive revision to the state personnel laws contained in Chapter 18A of the Kentucky Revised Statutes, and is cross-referenced at KRS 18A.020, which provides that the records of the Personnel Department are subject to the Open Records Law. Although the first sentence of KRS 61.878(3) refers to "state employees, " it also references "eligibles on a register." Succeeding language in the statute refers to "work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. " Much of this language has relevance only to Chapter 18A personnel policies and procedures. This suggests that the General Assembly intended to limit the scope of KRS 61.878(3) to state personnel governed by Chapter 18A.
In a subsequent, and unrelated opinion, issued in 1991, this Office concluded that county and commonwealth attorneys are exempted from the classified service in KRS 18A.115(1)(w), and are not governed by the provisions of that chapter. OAG 91-218 (copy attached). KRS 18A.115 provides, in part:
The classified service to which KRS 18A.005 to 18A.200 shall apply shall comprise all positions in the state service now existing or hereafter established except the following:
* * *
(w) County and Commonwealth's Attorneys and their respective appointees;
In OAG 91-218, we held that an assistant county attorney under the Unified Prosecutorial System was not eligible for an outstanding merit increase when he resigned and was immediately reappointed to an unclassified position in the Justice Cabinet. There we noted that personnel regulations governing unclassified service exclude county and commonwealth's attorneys and their appointees. KRS 18A.155; 100 KAR 3:010. Commonwealth attorneys are popularly elected constitutional officers, governed by Sections 97 and 100 of the Kentucky Constitution, and may adopt their own personnel policies and procedures. Neither they nor their appointees are attached to central state government. Accordingly, commonwealth attorneys, and their assistants, who are deemed "state employees" for other purposes, cannot be considered "state employees" for purposes of KRS 61.878(3).
We do not mean to suggest that the Office of the Commonwealth Attorney, as a public agency within the meaning of KRS 61.870(1), is not subject to the Open Records Act generally. Simply stated, the question is whether the 1986 amendments, found at KRS 18A.020 and KRS 61.878(3), preclude that Office from properly withholding records under KRS 61.878(1)(a) through (j) when a request is made by an employee for records pertaining to him. We believe that they do not. Since enactment of KRS 61.878(3) we have recognized the continued propriety of asserting these exemptions. In OAG 89-90, the Lexington-Herald Leader requested access to, among other things, performance evaluations of a number of employees of the Magoffin County Schools. Although such individuals are considered state employees, they are not governed by Chapter 18A. We did not find KRS 61.878(3) to be dispositive of the appeal, but instead held that inspection of employee evaluations could be properly denied. In OAG 89-90, we affirmed the reasoning of OAG 77-394, in which we approved Eastern Kentucky University's decision to withhold annual performance evaluations from a teacher who had requested them. Similarly, in OAG 91-128, OAG 91-133, and OAG 91-154, we recognized the propriety of the continued assertion of the exemptions. We would be remiss in failing to note that the 1992 General Assembly amended the Open Records Act by expanding the scope of KRS 61.878(3) to include all "public agency employees." This amendment, which will take effect on July 14, 1992, represents a departure from prior open records law, and should be born in mind by public agencies, which will be required to release the records of any of their employees who submit requests for copies of records relating to themselves.
We therefore turn to the question presented by the instant appeal: Whether your office properly denied Mr. Cunningham's request for third party correspondence, notes, and interoffice memos, pursuant to KRS 61.878(1)(g) and (h), and your office procedure manual, pursuant to KRS 61.878(1)(h).
We begin by noting that your response was technically deficient insofar as you failed to reply within three working days. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. Any agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. Some seven workdays elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
With respect to your denial of Mr. Cunningham's request for access to third party correspondence, notes, and inter-office memoranda, we find that your actions were consistent with the Open Records Act. KRS 61.878(1)(g) and (h) exclude from the application of the Act:
(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;
This Office has consistently recognized that preliminary inter-office and intra-office memoranda or notes setting forth opinions, observations and recommendations, as well as correspondence with private individuals, may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h), unless such documents are incorporated into, or give notice of, final agency action. OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 89-69; OAG 91-23. It is therefore the opinion of this Office that you properly denied that portion of Mr. Cunningham's request pertaining to third party correspondence, notes, and inter-office memoranda.
You correctly note that this Office has previously held that an operations manual of a police department or jail may be exempt, pursuant to KRS 61.878(1)(h), because they are inter-agency documents setting forth policies and recommendations. OAG 79-546; OAG 83-337; OAG 86-38. In those opinions, we also acknowledged that the operations manuals for most other governmental agencies are not sensitive documents the release of which might imperil personal and public security and administrative order. Thus, in OAG 79-546, at p. 3, we observed:
A public agency whose function does not involve the peril which goes with, [e.g.,] a detention center operation may have a policy of making its procedures manuals available to the public when it believes it is in the public interest to do so.
We, therefore, find that you improperly denied that portion of Mr. Cunningham's request pertaining to office procedure manuals. This is particularly true in light of the fact that Mr. McKenna was subject to those procedures during the course of his employment, and was presumably aware of them. Access to the manual in which they are reduced to writing should present no threat to any employee of your office, or the public generally.
As required by statute, a copy of this opinion will be sent to the requester, Mr. Charles L. Cunningham, Jr. Both Mr. Cunningham and you may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).