Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the denial by the Office of Program Support, Cabinet for Health Services, of the open records request of Ms. Chris Dyke to inspect the "reorganizing and/or restructuring plans within the agency and its subdivisions."
Ms. Marcia R. Morgan, Executive Director, Office of Program Support, Cabinet for Health Services, denied Ms. Dyke's request, explaining:
These documents are preliminary memoranda containing preliminary recommendations in which opinions are expressed or policies formulated or recommended and are therefore excluded under KRS 61.878(1)(i).
In her letter of appeal to this office, Ms. Dyke argued:
I believe the documents could not be "preliminary" or in any way exempted from the Public Records Act, since employees have received notice dated May 15, 1997, informing them of a their "involuntary transfer." The letter dated May 15, 1997, states "the action is necessary to move forward with restructuring of the Division of Licensing and Regulation."
On June 18, 1997, we sent the Cabinet a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Ms. Dyke's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Morgan, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In her response, she stated:
A proposed reorganization of the Division is in the discussion stage and preliminary recommendations are being formulated.
Responding to Ms. Dyke's reference in her letter of appeal to the involuntary transfer of employees letter, which was not mentioned in the original open records request, Ms. Morgan explained that, after checking with the Division of Licensing and Regulation, the only written documentation relating to involuntary transfers and restructuring of the Division are the letters sent to the employees being transferred to regional offices. She enclosed copies of those letters with the response submitted to this office.
We are asked to determine whether the denial of the requested records was consistent with the Open Records Act. For the reasons which follow, we conclude that denial of the request based upon the preliminary nature of the documents was consistent in part and inconsistent in part with the Act.
In support of her denial, Ms. Morgan cited KRS 61.878(1)(i) as authority for withholding of records which are "preliminary memoranda containing preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " It is apparent from the quoted language, that this is a miscite. The correct cite should be KRS 61.878(1)(j), which relates to preliminary matters as quoted in her response.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has long recognized that records which are preliminary in nature, such as working drafts that are subject to revision, fall squarely within the parameters of KRS 61.878(1)(j). OAG 89-34; 94-ORD-38; and 97-ORD-51. Such On June 18, 1997, we sent the Cabinet a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Ms. Dyke's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Morgan, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In her response, she stated:
A proposed reorganization of the Division is in the discussion stage and preliminary recommendations are being formulated.
Responding to Ms. Dyke's reference in her letter of appeal to the involuntary transfer of employees letter, which was not mentioned in the original open records request, Ms. Morgan explained that, after checking with the Division of Licensing and Regulation, the only written documentation relating to involuntary transfers and restructuring of the Division are the letters sent to the employees being transferred to regional offices. She enclosed copies of those letters with the response submitted to this office.
We are asked to determine whether the denial of the requested records was consistent with the Open Records Act. For the reasons which follow, we conclude that denial of the request based upon the preliminary nature of the documents was consistent in part and inconsistent in part with the Act.
In support of her denial, Ms. Morgan cited KRS 61.878(1)(i) as authority for withholding of records which are "preliminary memoranda containing preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " It is apparent from the quoted language, that this is a miscite. The correct cite should be KRS 61.878(1)(j), which relates to preliminary matters as quoted in her response.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has long recognized that records which are preliminary in nature, such as working drafts that are subject to revision, fall squarely within the parameters of KRS 61.878(1)(j). OAG 89-34; 94-ORD-38; and 97-ORD-51. Such records forfeit their preliminary characterization only if they are formally adopted by the agency.
The Cabinet, in its responses, indicated that the reorganization was still in the discussion stage and not yet completed by the agency. Accordingly, we conclude that the Cabinet, under authority of KRS 61.878(1)(j), properly withheld preliminary records relating to its reorganization and restructuring plans.
However, the involuntary transfer letters referred to by Ms. Dyke, copies of which were provided this office by Ms. Morgan, indicate that one plan has been developed and implemented by the Division. The letters state in part:
Due to the increasing number of changes in the survey process and complexity of the surveys the Division of Licensing and Regulation is required to complete, it has become necessary to consolidate the area offices and have all field staff under the direct supervision of a Regional Program Manager. The purpose of this action is necessary to move forward with restructuring of the Division of Licensing and Regulation.
This language reveals that the Division has adopted a plan to consolidate area offices and have all field staff under the direct supervision of Regional Program Manager. To the extent that the Division has developed and implemented such a plan, it would no longer be preliminary in nature. Records related to this plan referred to in the involuntary transfer letters should be made available for Ms. Dyke's inspection, unless otherwise exempt under other provisions of KRS 61.870 to 61.884.
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.