Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 Auditor of Public Accounts (APA) of Royden K. Cullinan's open records request to inspect records related to the Auditor's investigation and preparation of the "Report of the Auditor of Public Accounts, Special Review of Selected Areas of Expenditures and Administrative Policies of the City of Louisville." The official report of this investigation was issued October 21, 1997. Specifically, Mr. Cullinan appeals the denial of the following requests:
1. Records reflecting the various dates that APA personnel met with John P. Nelson during the period May 1, 1996, to October 21, 1997.
2. Notes taken by APA personnel during those meetings.
3. Records of phone calls between APA personnel and John P. Nelson during the period May 1, 1996, to October 21, 1997.
Mona S. Logsdon, Open Records Administrator, APA, in denying these requests, acknowledged that these records existed in the APA's office, but were exempt from disclosure under KRS 61.878(1)(i) as preliminary drafts, notes, or correspondence with private individuals which is not intended to give notice of final action of a public agency. In support of the denial, Ms. Logsdon cited OAG 78-816.
In his letter of appeal, Mr. Cullinan argues:
Ms. Logsdon did not identify or describe the records denied in response to Items 1 and 4 [Records reflecting the various dates that APA personnel met with John P. Nelson and records of phone calls between APA personnel and Nelson], nor did she set forth how KRS 61.878(1)(i) exception applied to these records.
Clearly, records that identify the dates APA personnel met Mr. Nelson, and that identify the dates of phone calls made to or received from Mr. Nelson are public. Records reflecting that a meeting took place or that a phone call was made do not reveal any exempted information.
As for item 2, it is inconsistent with the Open Records Act to withhold notes of meetings with Mr. Nelson, taken in the course of an investigation, after that investigation has concluded and a final report has been issued. Mr. Nelson's contracts and billing procedures were a subject of the APA investigation. APA personnel met with Mr. Nelson during the investigation specifically to discuss his billing practices. The APA's findings were contained in the October 21, 1997, report. The APA's meetings with Mr. Nelson are referred to and incorporated in the final report.
On page 7 of the final report, the APA specifically refers to discussions or meetings with John Nelson; "Dr. Nelson said he did not lobby the General Assembly . . ." and "According to Dr. Nelson . . ." (emphasis added). As the fact of these discussions is incorporated in the final report, the APA's notes about them are no longer preliminary.
After receipt of the notice of appeal, we sent a "Notification of Receipt of Open Records Appeal" to APA and enclosed a copy of Mr. Cullinan's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Robert E. McBeath, General Counsel, APA, provided this office with a response to the issues raised in the appeal. In his response, Mr. McBeath explained that all the records sought by Mr. Cullinan were audit work papers generated by the APA during the investigation and preparation of the Report, issued October 21, 1997, and thus were exempt under KRS 61.878(1)(i). He stated that notes of meetings with Mr. Nelson were made during interviews conducted by APA auditors engaged in an investigation involving the propriety of certain expenditures of public funds. He further explained:
. . . During such interviews, APA auditors may record impressions, ideas, suspicions, leads, names of possible confidential informants, other personal information the interviewee might disclose in confidence, and any and all manner of other preliminary information and impressions. This information and these impressions remain preliminary, whether any of them find their way into a final report. . . .
We are asked to determine whether the denial of Mr. Cullinan's requests was consistent with the Open Records Act. For the reasons which follow, we conclude that the response of the APA, with one exception relating to telephone records, was consistent with the Act.
KRS 61.878(1)(i) excludes from disclosure:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
In OAG 78-816, we held that work papers generated by the Auditor of Public Accounts and his staff during the course of investigating and preparing an audit report were exempt from public inspection under KRS 61.878(1)(g) and (h), now codified as KRS 61.878(1)(i) and (j). In OAG 78-816, we stated:
It is our opinion that such work papers generated by you and your staff are not public records under KRS 43.090(1), 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)(g) and (h)[now (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. Thus there are logical and compelling reasons for their exclusion as expressed in KRS 61.878. During the work period temporary conclusions written down and involving possible bad conduct of officers or employees might, at the later formulation of the completed report, prove to be erroneous or inaccurate.
After finding that the Auditor's work papers are exempt under KRS 61.878 "before the inchoate investigation ripens into a completed report," this office, in OAG 78-816, further held that the work papers remain exempt even after the report is completed, advising:
As we said above, when the report is completed, such work papers are exempt under KRS 61.878. Thus, the work papers generated by you and your staff never become public records.
Accordingly, we conclude that the APA properly withheld from disclosure the investigative work papers which reflect the various dates the APA staff met with Mr. Nelson, notes taken by the staff during those meetings, and work papers or notes which evidence phone calls between staff and Mr. Nelson, under authority of KRS 61.878(1)(i) and OAG 78-816.
This conclusion, relative to the phone calls, addresses that portion of Mr. Cullinan's request which concerned investigative work papers reflecting phone calls between APA and Mr. Nelson during the subject period, rather than a request for the APA's normal telephone business records, such as office printouts of telephone bills and calls made.
A public agency's normal telephone business records cannot be withheld from public inspection, unless the public agency meets its burden of showing that withheld telephone numbers are exempt from disclosure under a relevant exception of the Open Records Act. OAG 86-21. In that opinion, this office recognized:
There undoubtedly will be instances when there is a legitimate need by a public agency to keep telephone numbers it has called confidential. We think, however, that when those situations arise the burden should be on the public agency to justify, under the Open Records Act, or some other legislative enactment, why the record with the telephone numbers should not be released.
Thus, to the extent Mr. Cullinan requested normal business telephone records, they should be made available to him, as the APA has not established that any or all of those numbers can be withheld from release under the Open Records Act or another applicable provision of law. This office has recognized that review of records of this type enables the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes. 96-ORD-238.
Finally, Mr. Cullinan argues in his letter of appeal that a prior APA had granted a request for notes of investigations and this should serve as precedent for the release of the investigative notes requested here. We disagree. For the reasons stated above, we conclude that the APA properly withheld from disclosure the requested investigative work papers.
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.