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 questions presented in this appeal arise under both the Open Records and Open Meetings Acts. However, the appellant, J. D. Droddy, has perfected his appeal under the Open Records Act only. Accordingly, we confine our review to the question of whether the City of Bowling Green violated the Open Records Act in denying Mr. Droddy's request for records relating to Bowling Green Municipal Utilities Company and the break-up of the company. For the reasons that follow, we conclude that the city did not violate the Open Records Act in denying Mr. Droddy's request.
In a letter styled "open records request," and dated April 18, 1999, Mr. Droddy asked that the City of Bowling Green and its Board of Commissioners furnish him with, inter alia 1:
Any recordings, minutes, or personal notes taken by or in the possession of Commissioners (including the Mayor), the City Attorney, or any employee of the City of Bowling Green related to a closed session of the City Board of Commissioners in which . . . the feasibility, desirability, or possibility of the City's removing the water-sewer division from BGMU and putting it under the control of the City, the County, or any other entity [was discussed].
In addition, Mr. Droddy asked that the Board of Commissioners furnish him with "an accurate and complete summary of [any discussions of this topic occurring in closed session] . . . setting forth (1) the general essence of the discussion and (2) the positions taken . . . by individual Commissioners." He noted that "such a complete and accurate summary is the only reasonable way to repair the harm done to the public by the violation of the Kentucky Open Meetings Act. "
In a response dated April 27, 1999, Bowling Green City Attorney H. Eugene Harmon denied Mr. Droddy's request. Relying on KRS 61.878(1)(i) and (j), Mr. Harmon explained that "the City has taken no action concerning removal of the Water-Sewer Division from BGMU nor has the City Commission taken any action regarding removal of BGMU Board members." Any documents relating to this subject, Mr. Harmon asserted, may be characterized as preliminary drafts, notes, and correspondence with private individuals. In response to Mr. Droddy's request that the city furnish him with a summary of any closed session discussions of this subject, Mr. Harmon stated that the Open Records Law does not require a public agency to create documents, and that the city therefore would not prepare such a summary for him. We find that the city's response was consistent with the Open Records Act in all substantive respects.
Before we proceed to the issue of the propriety of the city's denial of Mr. Droddy's records request, we examine briefly the fallacy in his argument that his appeal implicates both the Open Records and Open Meetings Laws, and that "an equitable remedy" is available to him "for a violation of" the Open Meetings Law. The first sentence of Mr. Droddy's May 6 appeal contains a direct reference to the Open Meetings Law, indicating that the appeal "is submitted . . . from an agency denial as provided by KRS 61.846." 2 Mr. Droddy's decision to proceed under KRS 61.846 was apparently prompted by his conjecture "that unauthorized discussions regarding the break-up of BGMU may have occurred in closed session and that one or more participants in those discussions might have notes relating to that discussion."
The record before us discloses that Mr. Droddy has not submitted a written complaint to the presiding officer of the City of Bowling Green Board of Commissioners stating the circumstances which constitute the alleged violation, but has leapfrogged over this requirement, demanding equitable relief in the form of the creation of "an accurate and complete summary of the discussions" that allegedly took place at the conjectured closed meeting of the Board. The Board, having not been presented with an open meetings complaint, has not been afforded an opportunity to respond pursuant to KRS 61.846(1). Nor has the Attorney General been presented with an appeal that conforms to the requirements of KRS 61.846(2), and issued a written decision based on his review of that appeal. Simply stated, no legal determination has been made that the City of Bowling Green Board of Commissioners violated the Open Meetings Act by improperly discussing the break-up of BGMU in a closed session. An "equitable remedy" consisting of the creation of a summary of the alleged discussions is therefore not available to Mr. Droddy. 3
KRS 61.846(2) provides an administrative remedy for violation of the Open Meetings Act through the Office of the Attorney General. That remedy lies in the submission of a written appeal and the issuance of a written decision stating whether the agency violated the provisions of the Act. It is an "elementary canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court [and, of course, this office] must be chary of reading others into it." Transamerica Mortgage Advisors, Inc. v. Lewis, 441 U.S. 11, 19, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979), quoted in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 149, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980). We therefore reject Mr. Droddy's argument that because "KRS 61.805-850 does not, on its face, provide a specific remedy for a violation of the Open Meetings Act. . . ., it is within the power of the Attorney General to provide a reasonable administrative remedy that carries out the intent of the Act. . . . based on statutory considerations or . . . equitable considerations." Our duty under KRS 61.846(2), although a limited one, is clearly defined.
Our duty under KRS 61.880(2) is equally well defined. Having reviewed Mr. Droddy's open records appeal, consisting of his April 18 records request and the City of Bowling Green's April 27 response, we conclude that the city did not violate the Open Records Act in denying his request, but that its response was procedurally deficient. 4 In denying Mr. Droddy's request for recordings, minutes, or personal notes taken by the commissioners and mayor, the city attorney, or any employee of the city relating to a closed session discussion of the break-up of BGMU, Mr. Harmon stated that because the city has taken no action on this subject, documents relating to the subject are excluded from public inspection by operation of KRS 61.878(1)(i) and (j) 5 as preliminary drafts or notes, or preliminary memoranda in which opinions are expressed or policies formulated.
This office has consistently held that preliminary interoffice and intraoffice memoranda setting forth opinions, observations, and recommendations which are not incorporated final agency action may properly be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). The same is true of random notations made by individuals present at a meeting. These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. See, e.g., OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26; 96-ORD-134. They are premised on the notion that:
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)(g) [now (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. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
Only if these predecisional documents are incorporated into final action of the public agency do they forfeit their preliminary characterization. A cursory review of Attorney General's decisions construing the exceptions reveals overwhelming support for the position taken by the City of Bowling Green.
With respect to Mr. Droddy's request for recordings or minutes of closed sessions of meetings of the Board of Commissioners at which this subject was discussed, Mr. Harmon advised, generally, that the Board "does not record or take minutes of discussions in closed sessions," and that therefore no such records exist. Having not been presented with an open meetings complaint alleging an improperly held closed session, or an opportunity to respond to such a complaint, we believe that this response was sufficient under the law. 6 Mr. Harmon indicated that no minutes or recordings of closed meetings are maintained by the Board of Commissioners and that there are therefore no records which are responsive to his request. Obviously, a public agency cannot afford a requester access to records which do not exist. See, e.g., OAG 86-38; OAG 91-101; OAG 90-26; 98-ORD-116. The agency discharges its duty under the Open Records Act by affirmatively so stating. The City of Bowling Green fully discharged this duty.
Mr. Harmon also correctly states the rule of law pertaining to a public agency's duty to create records in response to an open records request. The Attorney General has long recognized that an agency is not required to create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 86-51; OAG 90-101; 93-ORD-50; 96-ORD-251. The City of Bowling Green has not generated, and does not possess, "an accurate and complete summary" of closed session discussions 7 of the feasibility, desirability, or possibility of the break-up of BGMU, and has so advised Mr. Droddy. The Open Records Act does not require more.
In sum, we find that, with the exception of the procedural violation noted, the City of Bowling Green's response to Mr. Droddy's request did not constitute a violation of the Open Records Act. We address neither the Open Meetings issues prematurely raised, because they have not been properly presented for review under KRS 61.846, nor the constitutional issues inappropriately raised, because an open records appeal is not the proper forum for resolution of such issues.
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.
Footnotes
Footnotes
1 In the same letter, Mr. Droddy requested copies of other documents. He limits the issues on appeal to the propriety of the city's denial of the documents described above.
2 KRS 61.846(1) and (2) provide, in part:
(1) If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
. . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
(2) If a complaining party wishes the Attorney General to review a public agency's denial, the complaining party shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial. . . . The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.
3 We remind Mr. Droddy of the role of the Attorney General in adjudicating disputes under the Open Records Act. Assuming he had properly perfected his open meetings appeal, and assuming this office had determined that a violation occurred, this office could not compel the Board to generate a summary of its discussions, but could only issue a decision stating that the Board violated the Open Meetings Act.
4 Mr. Droddy's request was hand-delivered on April 18. The city's response was issued on April 27. Because April 18 was a Sunday, it is unclear to whom delivery was made. Assuming however that service was effected on that date, we find that the city's response was not issued in a timely fashion, and therefore did not conform to the three day deadline for agency response. KRS 61.880(1).
5 KRS 61.878(1)(i) and (j) exclude from public inspection:
1(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(1)(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
6 In other words, we do not believe that in responding to Mr. Droddy's open records request Mr. Harmon should be required to indirectly confirm or deny that a meeting took place at which this subject was discussed. The proper forum in which to address this issue is in an open meetings complaint, response, and appeal.
7 See footnote 6 above.