Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Louisville's denial of Royden K. Cullinan's request for records identified as:
Interview transcripts, tapes and completed interview questionnaires generated by the Coopers & Lybrand study of the Revenue Commission and specifically pertaining to:
Don Edwards
Mac Unger
Larry Lenihan
Bill Summers
Greg Reddington
On behalf of the City of Louisville, Paul V. Guagliardo, Senior Attorney, denied Mr. Cullinan's request, advising him that the City was not in possession of the records he described. This appeal followed.
In his letter of appeal to this office, Mr. Cullinan asserts that the City's latest "strategy" to thwart access to public records "appears to be one of having contract vendors maintain the records, thereby allowing City attorneys to contend that the City is not in possession of requested records and therefore cannot provide them." Citing OAG 76-204, he argues that the audit work papers are public records which are subject to disclosure. Mr. Cullinan urges this office to issue a decision in which we find that a public agency cannot maintain public records "off premises," and then claim lack of possession as a basis for the failure to produce.
In a response dated September 15, 1995, Mr. Guagliardo reaffirms that the records Mr. Cullinan describes in his request are not in the City's possession. Accordingly, the records are not public records within the meaning of KRS 61.870 because they are not prepared, owned, used, in the possession of or retained by the City. Alternatively, he argues that if the records, as described, are deemed public records, for purposes of the Open Records Act, they are exempt from public inspection pursuant to KRS 61.878(1)(i) and (j). We agree that these records cannot properly be characterized as "public records, " and that, even if they were so characterized, they would almost certainly be exempt under KRS 61.878(1)(i) and (j).
The definition of the term "public record" in the Open Records Act appears at KRS 61.870(2). That statute provides:
'Public record' means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
While this is an expansive definition, it is nevertheless a finite one. In ascertaining the intended scope of the term "public record, " the Attorney General has attempted to construe KRS 61.870(2) with regard both for the legislative purpose of facilitating broad access to public records, and for the purpose of restricting unwarranted access to records not properly characterized as public records. KRS 61.871.
For example, in 93-ORD-113 this office held that records which are "used" or "possessed" by the commissioner of the Department of Insurance, in his role as rehabilitator of a financially troubled insurance company, are public records of a public agency, even though the records are not physically located in the Department. The documents at issue in that appeal were documents reflecting the identity of bidders for the insurance company. The public agency responded, inter alia, that the documents were not in its custody or control. We held:
Records which are 'prepared, owned, used, in the possession of or retained by . . .' the Commissioner [in his alternate role as rehabilitator] must be treated as 'public record [s]' as defined in KRS 61.870(2). There can be little doubt that Commissioner Stephens is intimately involved in the bidding process for Kentucky Central Life Insurance Company, and has therefore 'used' or at one time 'possessed' the bidding documents which disclose the names of the bidders. While those documents may not be housed at the Department of Insurance, . . . they are public records of a public agency, to wit, the Commissioner of the Kentucky Department of Insurance. 93-ORD-113, p. 5, 6.
Conversely, in 95-ORD-125 we concluded that records which are neither possessed nor used by a public agency are not public records within the scope of KRS 61.870(2). There, the public agency had contracted with a private corporation to manage assets in a pension fund, and make investment transactions on its behalf. These transactions were documented by confirmation tickets. Although the agency received a monthly accounting statement reflecting transactions and holdings in the fund, the corporation retained the confirmation tickets. Because the confirmation tickets never came into the possession of the agency, and were not used by it to monitor the fund's activities, we held that they were not public records. At page 6 of that decision, we observed:
It is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency's in deciding what records need to be created or retained.
We concluded that the failure of an agency to obtain possession of a record is not a cognizable issue under the Open Records Act.
These decisions demonstrate that the physical location of a record is not always determinative of its public or non-public character. What is, instead, determinative is whether the record is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Thus, in 95-ORD-114 we held that a letter from the Department of Justice to the Owensboro-Daviess County Hospital was no less "public" in character because it was in hospital counsel's possession. Although the hospital did not have the record in its actual, physical custody, it was nevertheless a "public record" within the meaning of KRS 61.870(2). At page 2 of 95-ORD-114, we noted that the hospital "cannot circumvent the requirements of the Open Records Act by stating its attorney has the requested document." Because he had possession of the letter "in his capacity as counsel for the hospital," the letter was clearly in use, and arguably, possessed by, the public agency. We have also recognized that, "records that are reposited at [a public agency] , regardless of whether they are 'in the possession of or retained by' the highest ranking officer or an employee of the humblest station, are public agency records, and must be made available for inspection subject to the rules set forth at KRS 61.870 to KRS 61.884, unless otherwise exempt. " 95-ORD-126, p. 3. In a footnote to the latter decision, we admonished that we did "not mean to suggest that public records forfeit that status if they are secreted away on private premises, or that private records somehow become public if they chance to be found in a public [agency]."
In our view, the records to which Mr. Cullinan requested access, "interview transcripts, tapes and completed interview questionnaires generated by the Coopers & Lybrand study of the Revenue Commission . . .," may be properly analogized to the records at issue in 95-ORD-125. Inasmuch as they are neither "prepared, owned, used, in the possession of [nor] retained" by the City of Louisville, they cannot be characterized as public records for purposes of the Open Records Act. KRS 61.870(2). Although the Coopers & Lybrand study of the Revenue Commission is, if adopted by the City in final agency action, a public record, the work papers which were used in preparing the study, like the confirmation tickets which were used in preparing the monthly accounting statement in 95-ORD-125, are not. And, as in that appeal, although the City might have requested copies of the work papers, it elected not to do so, relying instead on the study itself. Again, we decline Mr. Cullinan's invitation to substitute our judgment for the public agency's in deciding what records should be created or retained. It is the Coopers and Lybrand study which Mr. Cullinan is entitled to inspect, if adopted, under the open records provisions, just as it was the monthly accounting statements which the requester was entitled to inspect under the facts presented in 95-ORD-125.
Assuming for the sake of argument that the work papers at issue in this appeal were characterized as public records, as defined in KRS 61.870, our conclusion, relative to the City's obligation to release them, would not be altered. It is our opinion that such records, if they are in fact public records, are not open records, but are instead exempt per KRS 61.878(1)(i) and (j). Those exemptions authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
As we noted in OAG 78-816:
Work papers . . . are not public records . . . since only the 'completed report' can be a public document or record. Moreover, even when the complete report is made, such work papers would be exempted from the right of public inspection under KRS 61.878(1)[(i) and (j)], relating to preliminary drafts, notes, recommendations, memoranda, etc. Such preliminary drafts, notes, etc., are simply part of the tools which a public officer or employee uses in carrying out his statutory functions. [Citation omitted.] The public has a right to inspect a complete public action, namely, the completed report. [Footnote omitted.] The work papers are merely the informal and trial and error approach to the problem in the inchoate period leading up to the formulation of the completed report.
OAG 78-816, modifying OAG 76-204; see also, OAG 92-90; 94-ORD-107; 95-ORD-100. Because we believe the records at issue in this appeal are not "public records" for purposes of the Open Records Act, we need not decide whether they are exempt under KRS 61.878(1)(i) and (j). It is the opinion of this office that the City's response that it did not have possession of the records Mr. Cullinan sought was consistent with the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.