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 Campbell County Fiscal Court properly relied on KRS 61.878(1)(j) in denying Kentucky Post reporter Crystal Harden's May 4, 2000, request for "an advance copy of the (Draft) Campbell County Fiscal Year 2000-2001 Budget. " For the reasons that follow, we find that the Fiscal Court properly denied Ms. Harden's request.
In a response dated May 9, 2000, Campbell County Coordinator Harold W. McMillan relied on KRS 61.878(1)(j), explaining that "said documents or paperwork are considered to be 'preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended' and, therefore, exempted from public disclosure at this time." Nevertheless, Mr. McMillan continued, a copy of the draft budget was released to The Post on May 8, 2000, following a "budget orientation" by Judge Executive Steve Pendery, and with the admonition that the budget was subject to revision. Convinced that the budget "should have been made public once the county administrative staff had finished drafting it," and certainly after copies were distributed to members of the Fiscal Court, The Post's assistant managing editor, Mark Neikirk, initiated this appeal on May 12, 2000, acknowledging that the issue presented is not release of the proposed budget, but the timing of the release of the proposed budget.
In a supplemental response directed to this office following commencement of Mr. Neikirk's appeal, Mr. McMillan elaborated on the Fiscal Court's position. He observed:
Pursuant to KRS 68.240, Judge Pendery provided the draft budget to members of the Campbell County Fiscal Court on May 1, 2000. Not only were his actions designed to meet the requirements of law, but also to provide the commissioners the maximum opportunity to analyze the draft budget . . . .
Mr. McMillan noted that the budget ordinance had its first reading, per KRS 67.077, on June 7, 2000, following publication and notice to the public. He reaffirmed Judge Pendery's position that the draft budget "is a preliminary document," concluding that "while a strict interpretation of the KRS provides exemption of draft documents until the advent of a first reading, the Court exercised its prerogative to make the draft a matter of public discussion and record on May 8, 2000."
On June 30, 2000, The Kentucky Post , through its attorney, Mark D. Guilfoyle, submitted a rebuttal to the Fiscal Court's supplemental response. Mr. Guilfoyle challenged the Fiscal Court's reliance on KRS 61.878(1)(j), authorizing the nondisclosure of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " He argued:
The proposed budget contains no opinions or policy formulations/recommendations. The proposed budget is essentially a mathematical equation; its set forth dollar amounts proposed to be spent on enumerated subject areas. In essence, the document reflects the fact that Campbell County has a certain amount of money to be spent on county operations, and the proposed budget sets forth specific amounts of money to be spent in various categories
Moreover, Mr. Guilfoyle asserted, "the county's reliance on this exemption ignores the statutory mechanics for county budget-making" found at KRS 68.240, requiring the county judge/executive to "annually prepare a proposed budget . . . [and to] submit the proposed budget . . . to the fiscal court by May of each year." It was his position that "this document is not 'preliminary;' it is the final work product of the Campbell County Judge/Executive." Mr. Guilfoyle reasoned:
The Judge/Executive, of course, is the highest elected official in Campbell County. He is not a staff member, and disclosure of his work product cannot "chill" his conduct. He is accountable to the voters of Campbell County. Campbell Countians, through the media, have a clear right to access to the final work product of their highest elected official.
Once the operation of KRS 68.240 is understood, one can readily conclude that there is no need to protect any decision-making process here by refusing to disclose the final "proposed budget" of the Campbell County Judge/Executive. Memoranda prepared by county staff leading up to the finalization of the proposed budget might be accorded protection under the exemption which Campbell County relies upon, but the Judge/Executive's final proposed budget clearly is not exempt. In short, the proposed budget constitutes final agency action by the Campbell County Judge/Executive .
(Emphasis in original.) Contrary to the Fiscal Court's characterization of the budget as a "draft" document, Mr. Guilfoyle maintained that, per KRS 68.240, is it instead "a statutorily-required 'proposed budget. '"
Mr. Guilfoyle next challenged the argument advanced by the Fiscal Court that the Open Records Act "provides exemption of draft documents until the advent of a first reading, " charging that "this statement . . . has absolutely no basis in the law and should be rejected." He noted that the proposed budget sought by The Post was distributed to the county commissioners prior to The Post's request, and was therefore the final proposed budget rather than a draft. Mr. Guilfoyle distinguished OAG 83-166, holding that a draft copy of a county budget was excluded from inspection by the preliminary document exception. It was his position that the preliminary draft at issue in OAG 83-166 was different in kind from the " final 'proposed budget' " (emphasis in original) at issue in the instant appeal, and that the cited open records decision" did not consider the operation of the budget-making statute (KRS 68.240) . . . and thus constitutes an incomplete analysis." In sum, Mr. Guilfoyle asserted, the "'proposed' budget' finally produced by the Campbell County Judge/Executive" constituted "final agency action once completed by the Judge/Executive and certainly as of the point in time when . . . it was delivered to the county commissioners."
Having given consideration to The Kentucky Post's arguments, we do not find them sufficiently persuasive to overcome in excess of twenty years of open records decisions, none of which were successfully challenged. In decisions dating back to 1976, the year in which the Open Records Act was enacted, this office has distinguished between budgets in the process of being formulated and current working budgets on the basis of which expenditures are contemporaneously being made. See, e.g., OAG 76-287 and OAG 76-551. In 1983, the Attorney General amplified upon this view in affirming the Jackson County Fiscal Court's denial of a request for a draft copy of the county budget for the fiscal year beginning July 1, 1983, explaining that the draft budget:
is exempt from mandatory public inspection by KRS 61.878(1) [(i) (j)] which exempts preliminary drafts, notes, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. To be more explicit, preliminary drafts of a budget are not required to be available for public inspection. They are of the nature of intraoffice memoranda, preliminary tentative and merely expressions of recommendations which may or may not be incorporated into the final document.
OAG 83-166. Such preliminary drafts or proposed budgets were carefully distinguished from previous budgets and current budgets, both of which are open to public inspection "as previous budgets have lost any 'preliminary' quality by being closed and current budgets are 'working' budgets indicative of final action." OAG 84-217.
Although The Post is correct in its assertion that this office has never fully examined that effect of KRS 68.240 on the issue of access to proposed budgets, in 96-ORD-141 we examined the parallel statute dealing with the proposed budget submitted by a mayor to a city counsel pursuant to KRS 91A.030(7). Noting that the council "adopts a budget ordinance making appropriations for the fiscal year in such sums as it finds sufficient and proper, whether greater or less than the sums recommended in the budget proposal," we concluded that the city properly withheld the mayor's proposed budget on the basis of KRS 61.878(1)(i) and (j) "as such a document is preliminary in nature and it may or may not be incorporated into the city's final budget document for the fiscal year in question." 96-ORD-141. Just as the city council is not bound to adopt the budget proposed by the major as the city's final budget, so too, the fiscal court is not bound to adopt the budget proposed by the county judge/executive, but "may amend it according to its desires." KRS 68.240(6). As we have so often observed, the fact that the proposed budget is final as to its drafter, whether the county judge or the mayor, does not alter our analysis inasmuch as most proposals submitted are final in the sense that the drafter does not intend to prepare subsequent proposals or amend the earlier proposal. They are, nevertheless, preliminary to the final decision or action of the public agency, here the fiscal court or city council, in adopting the agency's budget. See, for example, OAG 90-97; 93-ORD-125.
Simply stated, KRS 61.878(1)(i) and (j) do not distinguish between the identities, or titles, of the individuals preparing draft documents, making recommendations, or formulating policies, nor do we. We assess the propriety of the Fiscal Court's denial based not on the identity of the author of the disputed records, but on the underlying nature of the record itself. Until adopted, as proposed or as amended, by the Campbell County Fiscal Court, the proposed budget presented to the county commissioners retains its preliminary character. It is one "of the tools which a public [agency] uses in hammering out official action," and not the official action itself. OAG 78-626.
It is, of course, within the Fiscal Court's discretion to release a copy of the proposed budget prior to its adoption, as proposed or as amended, by the full court, KRS 61.878(1)(i) and (j) notwithstanding. As we observed in 00-ORD-139, "the custodian of records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878" inasmuch as the exemptions are permissive shields and not mandatory shackles. 00-ORD-139, citing OAG 79-275. It is, however, for the Fiscal Court to determine if discretionary release of an otherwise exempt public record serves the public interest or compromises a significant governmental interest. We therefore find no error in the Campbell County Fiscal Court's original denial of The Kentucky Post's request, or in its subsequent decision to release a draft copy prior to final adoption.
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 proceedings.