Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet's Division of Engineering violated the Open Records Act in partially denying Jeffrey M. Sanders's June 3, 1998, request to inspect and copy "the Division of Engineering files pertaining to the presence or absence of asbestos in the state office building on Second Street in Owensboro, Daviess County, Kentucky." Mr. Sanders expressed particular interest in reviewing records "pertaining to this agency's confirmation of the absence of asbestos containing material in this office building." For the reasons that follow, we find that the Cabinet's response, although procedurally deficient, was substantively correct.
In its original response to Mr. Sanders's request, which was issued only after he initiated his appeal, the Finance and Administration Cabinet agreed to make available for inspection the records identified in his request, or alternatively, to mail him copies of those records. On July 17, Mr. Sanders notified the Cabinet that he wished to obtain copies of the records "in its possession that document its decision that asbestos containing material is not in the State Office Building in Owensboro, Kentucky." Shortly thereafter, the Cabinet issued an amended response, advising Mr. Sanders that "certain documents [would not be] released as they are exempt from disclosure pursuant to KRS 61.878(1)(j)." Mr. Sanders questions the propriety of the Cabinet's reliance on this exception, noting that "nothing in the documents provided . . . indicates how the Cabinet . . . made a final determination that the building did not contain asbestos. "
In a follow-up letter to this office, Boyce A. Crocker, assistant general counsel for the Finance and Administration Cabinet, explained the Cabinet's position. Mr. Crocker stated that upon receipt of Mr. Sanders's July 17 letter, he "contacted the appropriate person in the Cabinet who would have knowledge of the records," but was advised that the records were not in the Cabinet's possession. Since the renovation project was a project of the Cabinet for Families and Children, the records were in its custody. Nevertheless, Mr. Crocker obtained a copy of the file from the Cabinet for Families and Children.
After reviewing the file, Mr. Crocker concluded that five documents in the file "either did not meet Mr. Sanders' request (i.e., they were not related to the decision that no asbestos were present) or were exempt from disclosure under the Open Records Act by virtue of KRS 61.878(1)(j)." Mr. Crocker withheld two pages of handwritten notes under this exception and several memoranda. He reiterated that there was "no document in the file that reflects a final decision in writing that no asbestos was present," but that "the basis, in writing, for such decision is contained in the documents provided to Mr. Sanders." Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, Mr. Crocker furnished this office with a copy of the file to facilitate our review.
We begin by noting a number of procedural irregularities in the Cabinet's response. KRS 61.880(1) contains specific guidelines for public agency response to an open records request. That statute 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. An agency response denying, in whole or in part, inspection of any record 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.
The Cabinet violated the Open Records Act by failing to respond to Mr. Sanders's request in a timely fashion. Some twenty-three business days elapsed between the date of his request and the date on which the Cabinet responded. This exceeded the statutory deadline by twenty business days. Its response was apparently prompted not by his request, but by notification of receipt of his open records appeal, which this office mailed to the Cabinet on June 29, 1998.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5). The Cabinet offered no explanation for the delay. To this extent, its response was deficient.
It also appears that the Cabinet agreed to release all of the records which were responsive to Mr. Sanders's request without first inspecting those records. In its July 7 response, the Cabinet agreed to mail him copies of "the records [he] requested." It was not until after it received Mr. Sanders's July 17 follow-up letter that the Cabinet determined that the records were not in its possession. Having retrieved them from the Cabinet for Families and Children, the Cabinet then concluded that "certain documents" were exempt pursuant to KRS 61.878(1)(j) or were not responsive to Mr. Sanders's request.
In 98-ORD-81, this office expressed considerable consternation at the decision of a public agency to withhold documents from a requester after formally agreeing to make them available to him. At page 5 of that decision, we observed:
[The Attorney General], acting in a quasi-adjudicative role in open records disputes, relies on the truthfulness and accuracy of representations made to us by a public agency. We hold the agency to these representations in resolving an appeal. We therefore frown on an agency's attempt to breach its commitment to disclose records, particularly where the legal position it takes to support a new course of action is untenable.
Here, of course, the agency's position is not legally untenable. Nevertheless, we urge the Cabinet to carefully review the requested records before committing itself to a course of action from which it must ultimately retreat.
We have reviewed the file which contains the disputed records. According to Mr. Crocker, all but five of the records which are found in the one and one-half inch file were released to Mr. Sanders. Many of the records in the file are duplicative. Although we cannot reveal the contents of the five documents which were withheld, we can describe them in general terms. Three of the documents are internal memoranda between employees of the Cabinet for Human Resources, employees of the Finance and Administration Cabinet's Division of Engineering, and an employee of the Division of Engineering and the architect on the project. In those memoranda, opinions are expressed and proposals made relative to the project. None of the memoranda reflect final agency action, and none confirm the absence of asbestos containing materials in the state office building. We believe that these documents fall within the exception for preliminary memoranda in which opinions are expressed or policies formulated which is codified at KRS 61.878(1)(j). We also believe that insofar as they do not relate to the presence or absence of asbestos containing materials in the state office building, they are not responsive to Mr. Sanders's request.
We affirm the Cabinet's decision to withhold two pages of handwritten notes of unknown authorship. Although these notes relate to the asbestos, cataloging a series of events in January, 1997, they, too, are preliminary in nature, falling within the exclusion for preliminary drafts and notes which is codified at KRS 61.878(1)(i). In affirming the Cabinet's denial, we note that despite their relevance to the subject of Mr. Sanders's inquiry, the Kentucky Supreme Court has recognized that "from the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). In an early opinion, the Attorney General observed:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 76-626, p. 2. These handwritten notes are work papers used by a public official in hammering out official action, and not records reflecting that official action. We therefore conclude that the Cabinet properly withheld this two page document.
The final document which the Cabinet withheld is a bound report relating to the Owensboro state office building, apparently prepared by the project architect, and proposing two separate modification plans. It is unclear which, if either, of these plans was ultimately adopted by the Cabinet as its final action in this matter. To the extent that the report reflects preliminary recommendations only, and those recommendations were not adopted as final agency action, the Cabinet properly withheld it pursuant to KRS 61.878(1)(j). Nondisclosure of the report serves the purpose for which the exception was enacted. That purpose is described at page 4 of OAG 88-85:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, however, any portion of this predecisional document was incorporated into, or adopted as, final agency action, it is not exempt and must be disclosed. The Finance and Administration Cabinet is directed to review the bound report to determine if either of the proposed solutions was ultimately adopted, and to release to Mr. Sanders any portion of the report that was incorporated into final action on the renovation project.
The Cabinet's actions relative to this request do not constitute a violation of the Open Records Act. The documents with which he was furnished comprise virtually all of the file on the renovation project, and the documents which the Cabinet withheld fall within the cited exclusions (with the exception noted in the paragraph immediately preceding this one). The Cabinet is not obligated to create a document which does not exist
in order to satisfy his request, or to provide an explanation of the meaning of the documents disclosed. A clear answer to his questions apparently does not exist in the available records.
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.