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 Purchase Area Development District properly relied on KRS 61.878(1)(i) and (j) in denying Courier-Journal staff writer James Malone's July 20, 2000, request for "the legal opinions saying it was OK for Jimmy Hodges to go to work for ELR." For the reasons that follow, we find that PADD's reliance on the cited exceptions was misplaced and that the disputed document must be produced for inspection.
Sometime before October 8, 1999, Jimmie Hodges, the Department of Energy's site manager at the Paducah Gaseous Diffusion Plant, submitted a request for post-employment advice to the Department. On or about October 1, 1999, Mr. Hodges resigned from his position, and, in the same month, accepted employment with ELR Consultants. On October 8, the Department of Energy responded by letter to Mr. Hodges' request for post-employment advice, and Mr. Hodges subsequently furnished a copy of the letter to the Purchase Area Community Reuse Organization. In December, 1999, PACRO hired ELR as an outside consultant on its community reuse program. It was against this factual backdrop that Mr. Malone submitted his open records request to PADD, which provides administrative services to PACRO.
In a response dated July 21, 2000, J. Todd Elmore, an attorney representing PADD, denied Mr. Malone access to the Department of Energy's letter to Jimmie Hodges. On behalf of PADD, he expressed the view that the letter qualified for exemption pursuant to KRS 61.878(1)(i) as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Alternatively, Mr. Elmore asserted that the letter was excluded from the mandatory disclosure requirements of the Open Records Act pursuant to KRS 61.878(1)(j). He explained that because the letter "predates the employment/retention/hiring of ELR Consultants, and . . . legal opinions are expressed therein, the subject letter would constitute a preliminary memorandum in which opinions are expressed."
In a supplemental letter submitted to this office following commencement of Mr. Malone's appeal, Mr. Elmore elaborated on PADD's position. With reference to his argument that the letter constitutes correspondence with private individuals, he noted that the letter was "from the DOE to Mr. Hodges individually, and was not generated by or addressed to PACRO, PADD, or ELR." He acknowledged that he could find no supporting authority for this position, and argued alternatively that the letter "is clearly exempt from inspection under KRS 61.878(1)(j)." Mr. Elmore reasoned:
ELR was not employed by PACRO until December, 1999. The subject letter predates the employment of ELR. The subject letter was delivered to PACRO prior to the employment of ELR. The letter addressed an area relevant to the negotiations between PACRO and ELR. Therefore, subject letter is unquestionably "preliminary" material. As previously indicated, the subject letter provides legal "opinions" regarding post-employment conflicts of interest.
Based on this analysis, Mr. Elmore concluded that the letter "falls squarely within [KRS 61.878(1)(j)] as 'preliminary memoranda in which opinions are expressed.'" We find neither of these arguments persuasive.
We begin by noting that a letter generated by a federal agency in response to a federal employee's request for post employment advice cannot properly be characterized as "correspondence with private individuals." The exception codified at KRS 61.878(1)(i) is generally reserved for that narrow category of public records that reflects letter exchange by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. An analysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific, but in conducting that analysis, the Attorney General is guided by the statement of legislative policy codified at KRS 61.871, recognizing that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
Clearly, the letter in dispute does not qualify for exclusion as correspondence with a private individual since it was solicited by a federal employee in anticipation of his resignation from public employment. Nor can it persuasively be argued that the candor of the correspondents was dependent upon assurances of confidentiality. Mr. Hodges promptly transmitted a copy of the letter to PACRO, the public agency to which Mr. Malone submitted his open records request, as a means of demonstrating that his employment with ELR would not create a conflict of interest, thus enhancing the likelihood that ELR would be selected as the outside consultant for PACRO. It is precisely because the letter "addressed an area relevant to the negotiations between PACRO and ELR" that we reject PADD's argument that the disputed document is protected from disclosure by KRS 61.878(1)(i).
Similarly, we reject PADD's claim that the letter constitutes a preliminary memorandum in which opinions are expressed, and is therefore excluded from public inspection by KRS 61.878(1)(j). The purpose underlying this exception has been widely discussed, and turns on the recognition 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 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.
OAG 88-85, p. 4. KRS 61.878(1)(j) is thus "intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125. It is not intended to protect a document that is submitted to a public agency by a current or prospective employee of a private consulting company seeking a contract with the agency in an apparent effort to enhance the likelihood of the company's selection. The letter is more closely analogous to a bid document submitted in competitive negotiations as a means of illustrating the bidder's superior qualifications. Having selected ELR as the consultant on its community reuse program, PACRO is obligated to disclose the "bid document," in this case DOE's letter to Mr. Hodges, which it factored into the award of the contract.
Assuming for the sake of argument that the letter could be characterized as a preliminary memorandum in which opinions are expressed, we believe that it forfeited its preliminary characterization when it was adopted by PACRO as the basis in part for its decision to hire ELR. The courts and this office have long recognized that predecisional documents that are incorporated into final agency action no longer enjoy the protection of KRS 61.878(1)(j). See, e.g.,
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982);
University of Kentucky v. Courier-Journal and Louisville Times, Ky. 830 S.W.2d 373 (1992); 00-ORD-125 and authorities cited therein. As noted above, and as Mr. Elmore candidly acknowledges, the letter "addressed an area relevant to negotiations between PACRO and ELR," specifically, the absence of any conflicts of interest arising from Mr. Hodges' employment by its prospective consultant. Based on DOE's analysis, PACRO entered into a contract with ELR, and the letter became an open record.
This conclusion promotes the goal of agency accountability by enabling the public to monitor PACRO's conduct in discharging its official duties, and ELR's conduct in providing consulting services that do not invade the zone of prohibited conduct identified by DOE in its letter to Mr. Hodges. In our view, any arguable need for governmental confidentiality is subservient to the public's right to know, and the letter must be disclosed.
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.