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 is before the Attorney General on appeal from the Cabinet for Families and Children's response to the open records request of Chris Dyke for the following:
A copy of a list of any and all Distinguished Service Awards for 1998, by Region and County; including the name of the employee, the employee's job title, and the amount of the DSA.
Please include letters of recommendation for all nominees, the number of DSAs which were possible per office and the selection criteria for the final decisions.
By letter dated July 7, 1998, Teresa M. Suter, Executive Director, Office of Program Support, responded on behalf of the Cabinet to Ms. Dyke's request, stating:
Your Open Records Request (98-43) was received in the Office of Program Support on July 6, 1998. This is to inform you that it will take longer than the required three (3) workdays to review documents and determine which documents will be approved for release. Once that determination is made you will be notified of the amount of documents and the cost for releasing this information to you.
By letter dated August 4, 1998, Ms. Suter, provided Ms. Dyke's with the following information:
This is to inform you that the Office of Program Support received your Open Records Request on July 6, 1998. In order to generate the information you requested my office incurred a $ 50.00 an hour programming fee. The non-standardized report required three (3) hours of programming; therefore, there is a charge of $ 150.00 to be paid prior to the release of this information.
In her letter of appeal, Ms. Dyke appeals the Cabinet's actions on the grounds that the fees charged were excessive and its actions constituted an attempt to subvert the Open Records Act. In her letter, she states:
1) I was notified by phone that the Cabinet for Families and Children could not provide the information within any specified time frame because such requests were processed by the Cabinet for Health Services at their convenience.
2) My request for records was altered by phone to accommodate the Cabinet, by removing from the request the "Region." The purpose was to make the programming of information simpler for the Cabinet for Health Services.
3) I was later informed by phone, that there would be an "unexpected additional fee" of $ 150, which was confirmed by the attached letter.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal," and enclosed a copy of Ms. Dyke's letter to the Cabinet. Charles P. Lawrence, Assistant Counsel, Office of General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the letter of appeal.
In his response, Mr. Lawrence indicated that because the Cabinet had not clearly disclosed to her that an increased fee beyond ten cents per page would be assessed, the Cabinet would make the report available to her at the ten cents per page rate. Addressing other aspects of Ms. Dyke's request, Mr. Lawrence stated:
Also, the Cabinet is under no obligation to update the request for DSA records for all of 1998, as is implied in the initial request letter by Ms. Dyke, dated July 1, 1998, wherein she requested ". . . a list of any and all Distinguished Service Awards for 1998 . . . . " Records not in existence at the time of their compilation or assemblage for inspection are not subject to inspection. See KRS 61.870(2), 61.872(2), 97-ORD-18. Information which was available as of the date of the computer report, July 1, 1998, will be provided.
The Cabinet, in response to that portion of Ms. Dyke's request letter of July 1, 1998, wherein she requested ". . . letters of recommendation for all nominees, the number of DSAs which were possible per office . . . ." states that records which relate to nominees for DSAs and letters of recommendation, to the extent that these records relate to persons who did not receive DSAs, they contain preliminary recommendations and opinions, which did not result in final agency action to award DSAs and, therefore, are exempt pursuant to KRS 61.878(1)(i) and (j). It would also constitute an unwarranted invasion of personal privacy under KRS 61.878(1)(a) for the names of persons who did not receive DSAs to be publicly disclosed. See 96-ORD-1. Moreover, there is no record in existence which lists the names of all unsuccessful nominees and the agency is not required to compile such information which may exist in bits and pieces, scattered across offices statewide, and would require substantial research and effort to compile. See OAG 88-79. There is also no record or records which reflect the number of DSAs which were possible per office. Selection criteria for final decisions will be provided to Ms. Dyke.
Additional time will be required to manually retrieve over 400 individual personnel files to access the letters of recommendation for persons who received DSAs, and to review such records in order to redact as necessary such information e.g., social security number, as may constitute an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a) and 95-ORD-151. Ms. Dyke will be notified when these records are available and their total costs, as assessed at $ .10 per page. All records subject to disclosure will be available within two (2) to three (3) weeks.
We are asked to determine whether the actions of the Cabinet were consistent with the Open Records Act. For the reasons that follow, we conclude that the responses of the Cabinet were in substantial compliance with the Act and prior decisions of this office.
The Cabinet, in its response to the letter of appeal, acknowledged that it had not clearly informed her that an increased fee would be charged for generating the non-standardized report. As a consequence, the Cabinet indicated that the report would be made available to Ms. Dyke at ten cents per page. The courts, and this office, have determined that a charge of ten cents per page is reasonable for a standard 8-1/2 inches x 11 inches paper copy.
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985); 96-ORD-267. Thus, the issue as to whether the charges were excessive is not before us, as the agency has agreed to provide copies of the records at a reasonable fee.
We next address whether the Cabinet properly denied Ms. Dyke's request for letters of recommendation for unsuccessful nominees. The Cabinet provided a list of all Distinguished Service Awards (DSA)that had been awarded, and agreed to provide copies of letters of recommendation for successful nominees and a copy of the selection criteria used for the final decisions. However, it denied her request for letters of recommendation submitted on behalf of those nominees not selected.
Relying upon KRS 61.878(1)(i) and (j), the Cabinet stated that any letters of recommendation or other records relating to unsuccessful nominees would be exempt as they contain preliminary recommendations and opinions, which did not result in final agency action to award a DSA.
KRS 61.878(1)(i) and (j) exclude from the mandatory disclosure provisions of the Open Records Act:
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.
These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying these exemptions is discussed at p. 4 of OAG 88-85, where this Office opined:
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, the predecisional documents are incorporated into final agency action, they are not exempt.
This dichotomy is best illustrated in
City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt form public disclosure as preliminary documents. At p. 659, the court reasoned:
It is the opinion of this court that subsections [i] and [j] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision.
Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
See also,
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 957 (1983) (holding that "those documents defined in subsection [i] and [j], which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records . . . . Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under subsection [i] and [j] of the Act.").
In 95-ORD-32, we held that the University of Kentucky improperly withheld that portion of the Chancellor's letter to the President containing his recommendation relative to a faculty member's promotion. In that case the recommendation had been approved by the President and then transmitted to the Board of Trustees, which took final action approving the promotion. We found that Chancellor's recommendation was adopted by the Board of Trustees in its final action approving the promotion, and thus lost its preliminary character.
However, in the instant appeal, the Cabinet indicated letters of recommendation for unsuccessful nominees were records which contained preliminary recommendations and opinions, which did not result in final agency action to award them a Distinguished Service Award. Because the letters of recommendation were not adopted or incorporated into final agency action, i.e., the award of a DSA, they retain their preliminary character. For this reason, we conclude the Cabinet properly relied upon KRS 61.878(1)(i) and (j) in denying access to the letters of recommendation for unsuccessful nominees. Because we find that KRS 61.878(1)(i) and (j) form a proper basis for denying access to these records, we do not address the Cabinet's additional ground that release of the records would constitute an unwarranted invasion of personal privacy under KRS 61.878(1)(a).
We further conclude that the Cabinet properly denied the requests for a list of the names of all unsuccessful nominees and records which reflect the number of DSAs which were possible per office on the basis that no such records exist. This office has consistently recognized that a public agency cannot provide a requester access to a record or document which it does not have or which does not exist. 98-ORD-35; 96-ORD-190; 96-ORD-163. Moreover, it is well settled that a public agency is not required to create a document that does not already exist in order to satisfy an open records request. 95-ORD-82.
In the instant case, the Cabinet promptly notified Ms. Dyke that there would be a delay beyond the three workday requirement to provide the requested records and explained that it would take longer than the three day limit to review documents and determine which records would be approved for release. This portion of the Cabinet's response was proper and consistent with provisions of the Open Records Act.
However, the Cabinet failed to provide Ms. Dyke with a time and the earliest date on which the records would be available for inspection. This portion of the Cabinet's response was inconsistent with the requirements of KRS 61.872(5). In the event that the requested records are not available for immediate inspection, the agency must provide "a detailed explanation of the cause . . . for further delay and the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
However, this deficiency was mitigated by the Cabinet's supplemental response to this office, with a copy to Ms. Dyke, that all records subject to disclosure would be available within two to three weeks of the date of that letter. This time frame, in our view, is reasonable, and in accord with KRS 61.872(5), in light of the Cabinet's statement that the additional time was required to manually retrieve over 400 individual personnel files to access letters of recommendation for persons who received DSAs and to review such records in order to redact confidential information which may constitute an unwarranted invasion of personal privacy, such as social security numbers, pursuant to KRS 61.878(1)(a).
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.