Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet complied with the Open Records Act in responding to Anne E. Gorham's requests to inspect various records relating directly and indirectly to her client, Abhe & Svoboda's, contract with the Cabinet to paint the JFK Bridge. At issue is the adequacy of the Cabinet's responses to each of Ms. Gorham's requests. Based on our review of the Cabinet's responses, we find that it fully discharged its obligations under the Act by making available for inspection all nonexempt records that are responsive to her broadly-worded requests. We address each of Ms. Gorham's requests, and the propriety of the Cabinet's responses thereto, in light of prior decisions of the courts and this office.
1. All documents generated by the Cabinet "Paint Committee" regarding this project.
Relying on KRS 61.878(1)(j), the Transportation Cabinet denied this request. In a supplemental response directed to this office, Assistant General Counsel Todd Shipp explained:
Ms. Gorham's clients have routinely submitted unilateral requests to obtain more money under the contract. The company has been denied the same. The process for claim review is at the end of a project, not throughout the project. At present, any review by the committee is preliminary in nature . . . . As well, this Cabinet is not required to cite a federal regulation that exempts records.
We affirm the Cabinet's denial of Ms. Gorham's request on the statutory grounds asserted.
In
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), the Kentucky Supreme Court declared that although "the unambiguous purpose of the Open Records Act is the disclosure of public records [,] . . . the General Assembly [has] determined that certain public records should be excluded from disclosure." From the exclusions codified at KRS 61.878(1)(a) through (l), the Court continued "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." Id. at 578. With specific reference to KRS 61.878(1)(j), the Attorney General has recognized that this exemption "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24. It has been interpreted to authorize nondisclosure of preliminary records containing the inchoate opinions, observation, and recommendation of agency personnel. The purpose underlying the exemption is analyzed 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 case 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, 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 from public disclosure as preliminary documents. The court reasoned:
It is the opinion of this court that subsections (g) and (h) [now codified as 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.
City of Louisville, supra at 659. In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. See also,
University of Kentucky v. Courier-Journal and Times, Ky., 830 S.W.2d 373 (1992).
Mr. Shipp acknowledges the existence of a Paint Committee established, in part, to review the problems associated with the JFK Bridge project, and to formulate a policy in response to those problems. This process is ongoing, and no formal recommendations have been made or final action taken. Thus, records generated by and for the Paint Committee fall squarely within the parameters of KRS 61.878(1)(j). Once this matter has been finalized, and a course of action determined, Ms. Gorham will be entitled to inspect those findings and recommendations that are adopted as part of the Cabinet's final action.
2. All documents relating to pre-bid investigations performed on the JFK Bridge in 1997, 1998, or 1999 relating to: cleaning, power washing, power tooling, painting, the condition of the bridge paint, projected costs and projected time of cleaning and painting, and the results of the evaluations.
3. All documents relating to pre-bid investigations of the bridge paint condition, and any investigation and/or evaluation that led to the 7,000 psi level of power washing and expected power tooling.
In her letter of appeal, Ms. Gorham stated that the Cabinet "recently denied this request on the grounds that these documents are in the possession of the Kentucky Transportation Center." Mr. Shipp responded that 2,596 documents were compiled by the Cabinet in response to Ms. Gorham's broadly worded requests, some of which pertain to this subject. In addition, he noted, the Cabinet afforded her access to "the Central Office file, District Five file, and Kentucky Transportation Center file" relating to the JFK Bridge project. With reference to the latter file, Mr. Shipp explained:
The Transportation Cabinet notified Ms. Gorham of the location of records [at the Kentucky Transportation Cabinet] as required by the Open Records Law. Upon her request to the Kentucky Transportation Center (affiliated with the University of Kentucky) a search was conducted for the documents and these now await Ms. Gorham to contact this office for review. As a matter of convenience the Kentucky Transportation Center delivered them to this agency for handling.
Again, we affirm the Cabinet's response to this portion of Ms. Gorham's request.
The dispute pertaining to these records stems from a simple miscommunication. On February 29, Ms. Gorham submitted an open-ended request for:
All memoranda, reports, minutes of meetings (in written, audio or video format) , letters, notes, correspondence of any kind or other documents (either written or in electronic format) which in any way describe or relate to pre-bid investigation of the JFK bridge and related structures within the last ten years.
Commissioner Ed Roberts, Department of Administrative Services, responded that the request was too vague and overbroad to allow a sufficient search for records. Nevertheless, he indicated that "documents related to the bidding process are available for . . . review in Frankfort at the State Office Building." He suggested that she contact Mr. Shipp to arrange a time for inspection.
On March 14, Ms. Gorham attempted to narrow the scope of her request, asking, instead, to inspect:
All documents generated by the Cabinet relating to pre-bid investigation of the bridge paint condition, and any investigation and/or evaluation that led to the 7,000 psi level of power washing and expected power tooling.
Commissioner Roberts responded on March 17 that 2,596 documents had been gathered that were responsive to this and other requests Ms. Gorham had submitted. He again suggested that she contact Mr. Shipp. This is where Ms. Gorham's request currently stands.
It is the opinion of this office that the Cabinet properly characterized Ms. Gorham's original request as vague and nonspecific. The Attorney General has long recognized that although the purpose of the Open Records Act is to permit "the free and open examination of public records, " the public's right of access is not absolute. See, for example, 92-ORD-1261. As a precondition to inspection, a requesting party must identify with "reasonable particularity" the documents that he or she wishes to inspect. This position is premised on the notion that public employees "are the servants of the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4. Where the records sought use of or identified, limited class, the requester satisfies the precondition to inspection.
The records to which Ms. Gorham originally requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. Given the lack of specificity of the request, the Cabinet might have been compelled to expend countless hours in locating, retrieving, and producing the records for inspection. As Mr. Shipp notes in his April 19 supplemental response directed to this office:
If records still exist over a ten year period the number of documents could reach into the hundreds of thousands . . . . Each [of the twelve] District [offices] as well as central office would expend significant man-hours in the vague chance we would meet her request.
Indeed, Ms. Gorham's request was more closely akin to the "open ended any-and-all-records-that-relate-type of requests" that were specifically criticized in 96-ORD-101 and 99-ORD-14, or the "broad discovery request[s]" that were similarly criticized in 00-ORD-79. We find no error in the Cabinet's refusal to honor her original request.
Moreover, it is our opinion that the Cabinet discharged its duties under the Open Records Act in responding to Ms. Gorham's amended, and narrowed, request, by retrieving and making available for inspection the 2,596 documents that apparently constitute the corpus of materials pertaining to the JFK Bridge project, along with the materials in the possession of the Kentucky Transportation Center. Although the Cabinet did not renew its invitation to Ms. Gorham after obtaining the latter documentation, both Mr. Shipp and Commissioner Roberts have expressed the Cabinet's willingness to permit Ms. Gorham to conduct an on-site inspection of all existing documentation. In so doing, the Cabinet has complied with the Act, and satisfied its statutory obligations relative to her March 14 request, as well as her subsequent request to the Kentucky Transportation Center.
4. All documents relating to or explaining the "experimental" nature of this Project, and the objectives of the experiments.
These documents originally resided in the custody of the Kentucky Transportation Center and, as it did in responding to requests 2 and 3, the Cabinet referred Ms. Gorham to the Center to secure access to them. Since that time, the Center has transmitted the documents to the Cabinet where they are currently available for inspection. Although the Cabinet was clearly remiss in failing to formally notify Miss Gorham that the records had been transferred and were available for inspection, it has now done so, and thus complied with the Act.
5. All memoranda, reports, minutes of meetings (in written, audio, or video format) , letters, notes, correspondence of any kind or other documents (either in written or in electronic format) which in any way describe or relate to pre-bid investigations of the JFK Bridge and related structures within the last ten years.
With respect to this broad category of documents, Ms. Gorham complained that her request was "denied in part due to [its] breadth . . . ." Nevertheless, she stated, the Cabinet agreed to permit her to conduct an "investigation, but access to these records has since been denied." Noting that the Transportation Cabinet has compiled all nonexempt documents pertaining to the JFK Bridge project, as well as responsive documents previously in the custody of the Kentucky Transportation Center, Mr. Shipp reaffirmed the Cabinet's denial for the reasons stated, explaining:
The Kentucky Transportation Cabinet is not sure what Ms. Gorham is seeking due to her request completely failing to describe with any degree of precision what specific records she wishes to receive. The Transportation Cabinet has offices throughout the state and as such the documents are widely dispersed among twelve districts and central office. The . . . Cabinet is charged with the responsibility of maintaining approximately 9,000 bridges throughout the state.
Nevertheless, Mr. Shipp agreed to allow Ms. Gorham to inspect the files pertaining to specifically identified "related structures," and renewed the Cabinet's invitation to her to inspect those documents described with reasonable particularity. Consistent with the principles set forth in parts 2 and 3 above, we find that the Cabinet's partial denial of Ms. Gorham's broadly worded request did not violate the Open Records Act. As this office has observed, on more than one occasion, the Open Records Act "does not require a public agency to conduct 'an exhaustive exhumation of records,'
Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978) or to embark on an unproductive fishing expedition 'when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.' In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983)." 95-ORD-96, p. 7; 00-ORD-4.
The Transportation Cabinet has agreed to make available for inspection the nonexempt materials contained in its files pertaining to the JFK Bridge project, as well as the materials from the Transportation Center's files, that are responsive to Ms. Gorham's request. The Cabinet has expressed its willingness to provide her access to other files pertaining to "related structures" if Ms. Gorham specifically identifies those structures in which she has an interest. The Open Records Act does not require it to do more.
6. All memoranda, minutes of meetings (in written, audio or video format) , letters, notes, correspondence of any kind or other documents (either in written or electronic format) which in any way relate to the specifications for the JFK Bridge painting project or the development of the specifications within the last ten years.
Our analysis in part 5 above is dispositive. The Cabinet did not violate the Open Records Act in partially denying this request, and has otherwise discharged is statutory duty under the Act by extending an invitation to Ms. Gorham to inspect all non-exempt records in its custody that are responsive to this request.
7. All memoranda, minutes of meetings (in written, audio or video format) , letters, notes, correspondence of any kind or other documents (either in written or electronic format) which in any way relate to the currently ongoing JFK Bridge painting project, including, but not limited to:
a. Consideration of requests for changes to the specification;
b. Consideration of the contractor's consultants' reports;
c. Consideration of the contractor's proposals for alternatives.
8. All memoranda, minutes of meetings (in written, audio or video format) , letters, notes, correspondence of any kind or other documents (either in written or electronic) which in any way relate to the letting of the JFK Bridge project for bids, all bids submitted and all documents relating to KDOT's estimate for this project.
With reference to parts 7 and 8 of her requests, Ms. Gorham asserted that although the Transportation Cabinet initially agreed to permit inspection of responsive records, "access to these records has since been denied." Mr. Shipp responded that the records identified in these requests can be located in the 2,596 pages of documents she has been invited to inspect on-site. Again, we find no error in this response. That her search may not yield all of the records she believes to exist does not alter our conclusion. Our decision turns not on whether the fruits of the agency's search meets the requester's expectations, but whether it made a good faith effort to conduct a search for the records identified in the request using methods that could reasonably be expected to produce the records requested. In the absence of evidence calling into question the Cabinet's good faith, we must conclude that the Act requires nothing more.
9. All memoranda, reports, notes, diaries, correspondence, or other documents relating to inspections on this project.
Ms. Gorham stated that although the Cabinet had agreed to release these records, it subsequently withdrew its consent. Mr. Shipp responded that, in fact, inspection reports were made available. Although we find that the Cabinet was again remiss in failing to specifically address the existence (or nonexistence) of memoranda, notes, diaries, correspondence, or other documents relating to the inspections conducted in the course of the JFK Bridge project, it has afforded Ms. Gorham access to its project file, with the narrow exception of records generated by the Paint Committee that are excluded from inspection by operation of KRS 61.878(1)(j), and thus discharged its duty to make full disclosure of nonexempt records. We infer the nonexistence of any responsive records, other than the reports themselves, but urge the Cabinet to advise the requester, in unequivocal terms, whether records described with reasonable particularity exist or do not exist, in the future.
10. All memoranda, minutes of meetings, (in written, audio or video format) , letters, notes, correspondence of any kind or other documents (either in written or electronic format) which relate to, describe, or in any way reference contract with other painting contractors or consultants concerning this project since August 1, 1999.
The Transportation Cabinet originally denied this request based on its vagueness and nonspecificity. In its supplemental response, the Cabinet affirmatively stated that a search of the 2,596 documents constituting its file on the project, "no document was located" that was responsive to this request. This is the unequivocal denial of the existence of a responsive record envisioned in our analysis of the Cabinet's response to part 9, above. We find that this denial was correct and proper under the Open Records Act.
Conclusion
We find that the Transportation Cabinet's disposition of Ms. Gorham's voluminous requests, many of them so nonspecific as to render a good faith search impossible, by agreeing to make its file on the project available for inspection, did not violate the Open Records Act. Although greater efforts might have been made to communicate with Ms. Gorham its willingness to open its file, and to notify her that Kentucky Transportation Cabinet records were also available, it was not incumbent on the Cabinet to designate a time for inspection. The Cabinet cannot be faulted for failing to produce records that do not exist, for refusing to conduct unproductive fishing expeditions through ten years of accumulated documents in order to locate vaguely described records, or for withholding preliminary records prior to final agency action. We therefore affirm its disposition of Ms. Gorham's requests.
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.