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 City of Bowling Green violated the Open Records Act in denying John H. McCracken's request for records relating to his client, Robert Settle, and two other individuals, Robert Sanborn and Oscar Cherry. For the reasons that follow, we find that the City's denial of Mr. McCracken's request was only partially consistent with the Open Records Act.
On July 15, 1998, Mr. McCracken asked that the City furnish him with copies of notes written by Chief Gary Brown which were "used in evaluating the candidates for [the] Deputy Chief position" for which Mr. Settle had applied but been rejected. In a response dated July 24, 1998, Bowling Green City Attorney H. Eugene Harmon denied Mr. McCracken's request. Relying on KRS 61.878(1)(i) and (j), Mr. Harmon argued that "any notes maintained and written by Chief Brown are preliminary notes, memoranda and recommendations that are not subject to the Open Records Act. " This appeal followed.
In a supplemental response dated December 10, 1998, Mr. Harmon elaborated on the City's position. He described the sequence of events leading up to Mr. McCracken's open records request.
Several months ago the City of Bowling Green took applications for the position of Deputy Fire Chief. Three individuals passed the required test and their names were provided to the Fire Chief in order to make a recommendation to the City Manager of the City of Bowling Green. The City Manager can then either accept or reject that recommendation and if accepted, forward it to the City Commission for approval. Robert Settle was one of three persons passing the required test whose name was submitted to Fire Chief Gary Brown.
Mr. Harmon indicated that at a grievance hearing Chief Brown disclosed that in the process of making his recommendation, he made written notes in which he identified "the strengths and weaknesses of each of the three candidates. " Those handwritten notes:
were never made a part of his recommendation to the City Manager, nor were those handwritten notes provided to the City Commission, nor were those handwritten notes ever a part of the final decision of the City Commission.
The City questions whether Chief Brown's handwritten notes "are in fact public records at all," and urges this office to "recognize the chilling effect of requiring public employee supervisors to be required to disclose even handwritten notes they may have used during the personnel process."
It is the opinion of this office that although KRS 61.878(1)(i) and (j) have generally been construed to authorize the nondisclosure of preliminary notes used in formulating a formal recommendation, but not incorporated into final agency action, such notes must be disclosed if they are requested by a public agency employee and relate to him. On this issue, KRS 61.878(3) is controlling.
Among the public records which are excluded from the mandatory disclosure provisions of the Open Records Act are:
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.
KRS 61.878(1)(i) and (j). In a series of opinions, the Attorney General has affirmed public agency denial of open records requests for preliminary notes used in formulating recommendations pursuant to KRS 61.878(1)(i) and (j) on the theory that:
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 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.
OAG 88-85, p. 4; see also OAG 86-64; OAG 88-24; OAG 89-39; OAG 90-97; 97-ORD-97. Underlying these opinions is the recognition that:
Not every paper in the office of a public agency is ? 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 used in hammering out official action within the function of his office.
OAG 78-626, p. 2; see also 97-ORD-73; 98-ORD-144.
When, however, the request for preliminary notes used in formulating a formal recommendation are requested by a public agency employee, and the notes relate to him, these decisions are not controlling. At this point, KRS 61.878(3) comes into play. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In construing KRS 61.878(3), the Attorney General has observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, ? applicant[s] for employment, or ? eligible [s] on a register." When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 4.
In 93-ORD-71, we held that the Shelby County Public Schools improperly withheld records reflecting the identity of evaluators along with their comments. At page 3 of that decision, we recognized:
that release of the cover sheets disclosing the names of the evaluators is likely to have a chilling effect on candor and frankness in the evaluation process. It is not for this Office, however, to comment on the wisdom of legislation, but to interpret and implement that legislation.
The language of KRS 61.878(3) is clear and direct. Public agency employees are entitled to inspect and copy "any record, including preliminary and other supporting documents that relate[] to [them]." Mr. Settle is an employee of the Bowling Green Fire Department. The disputed notes relate to him. He is therefore entitled to inspect and copy them. See also 93-ORD-19 (holding that a public agency employee can inspect handwritten notes generated by agency's affirmative action officer in the course of investigating a formal complaint filed by the employee). The City of Bowling Green should therefore make arrangements for Mr. McCracken and his client to inspect Chief Brown's notes relating to Mr. Settle.
This holding does not extend to preliminary notes prepared by Chief Brown in assessing the qualifications of Robert Sanborn and Oscar Cherry. These notes cannot be properly characterized as records relating to Mr. Settle, and Mr. Settle has no greater right of access to them than any other third party. We believe that the line of opinions construing KRS 61.878(1)(i) and (j) cited above, which hold that unless incorporated into final agency action such notes retain their preliminary characterization, are controlling. See, e.g., 98-ORD-144 (holding that handwritten notes are work papers used by a public official in hammering out official action, and not records reflecting that final action) ; 97-ORD-73 (holding that "typed and handwritten notes ? are more closely akin to work papers used by a public officer in hammering out official action than records reflecting that official action"); see generally,
City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658, 659 (1982) (holding that if the ultimate decision maker "adopts notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent"). The City of Bowling Green affirmatively represents that Chief Browns' notes were not considered by the City Manager or the City Commission in arriving at their decision relative to appointment of a new deputy fire chief. Those notes may properly be withheld.
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.