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 Eastern Kentucky University violated the Open Records Act in denying Eastern Progress staff writer Jamie Vinson's requests for "a copy of the study done by Buck Consultants concerning classified employees." For the reasons that follow, we affirm EKU's denial of Ms. Vinson's request.
In response to Ms. Vinson's April 27, 2000, request for the report, University counsel Katherine M. Coleman advised:
At this time the University has not received any final report from Buck Consultants relative to the study commissioned by the University. Preliminary data relative to portions of the total survey to be conducted have been received by the University; however, no final report has been issued by Buck or received by the University. Such preliminary data reports are exempt from production under the Open Records Act pursuant to KRS 61.878(h) [sic]. Further, these preliminary data reports constitute "preliminary recommendations, and preliminary memoranda in which opinions are expressed and or policies formulated or recommended" pursuant to KRS 61.878(i) [sic] and as supported by 93-ORD-125.
Four months later, Ms. Coleman denied Ms. Vinson's renewed request, explaining that the final report "is not expected to be received until October." Shortly thereafter, Eastern Progress editor Dena R. Tackett initiated this appeal. It was her position that because EKU President Robert Kustra discussed the study in an open forum, and the study was the basis for salary decisions, "it should not be considered preliminary data."
In a response directed to this office following commencement of Ms. Tackett's appeal, Ms. Coleman elaborated on EKU's position. She explained:
In the Fall of 1998 Eastern Kentucky University determined to hire a consulting firm to study the institution's classification and compensation system. As a result of the University's request for proposals the firm of Buck Consultants was retained to conduct this study. The study was commissioned as a result of compensation complaints from members of the staff. The University, through this study, is seeking to determine if, and in what positions, current compensation is below relevant market rates as well as to explore the development of a new compensation classification system for the University.
The study, as proposed and conducted, is a long-term project. The study began with focus groups being conducted by Buck Consultants to ascertain employee perceptions concerning the current compensation system and to gather suggestions for change. Following these focus groups, all staff employees up through the level of Director (which includes not only classified but contract staff as well) completed a "Job Inventory Form (JIF)" to gather specific job position information to assist Buck Consultants in recommending a new job classification system. It is the results of the JIF analysis that the Progress is requesting. (Buck Consultants has completed a "Medical Plan Analysis" as has been disclosed in open meeting of the Board of Regents. This report has not been requested to date by the Progress , but is available upon request.)
The preliminary report received by the University as a result of the JIF portion of the study contains a number of errors. These errors may be the result of misunderstood information provided to Buck by the University or simply data input errors - which errors must be identified and corrected by those University officials involved in the study. These errors are being identified and forwarded to Buck Consultants for revision.
Further, the analysis provided to date is in broad form. For example, individual salary analysis does not yet take into account the number of years of service an employee may have with the institution or in a particular position - factors which will potentially affect individual pay rates. The University is currently working with Buck Consultants to create data reports which more directly address the concerns of the University. It is imperative that University officials be able to review such preliminary data and recommendations and provide additional data and input before any final analysis is made. This gathering, compilation and analysis of data is related to the process of developing and formulating policy - its does not represent final agency action.
Ms. Coleman reaffirmed EKU's reliance on KRS 61.878(1)(i) and (j), misidentified as KRS 61.878(1)(h) and (i), noting that release of a preliminary report containing known errors would be "careless."
Responding to Ms. Tackett's assertion that the Buck study was used as a basis for salary decisions, Ms. Coleman maintained that "at this time, no individual compensation determinations have been made as a result of any preliminary data or other information provided by Buck Consultants. " Rather, EKU's decision to provide "$ 900 across the board salary increase[s] for fiscal year 2000/2001" was prompted by "a nominal increase in its state appropriations for this budget year." Responding to Ms. Tackett's argument that the study should not have been publicly discussed if it was preliminary and non-final in nature, Ms. Coleman stated:
While the Buck study is not yet complete, and the University has most certainly not taken any final agency action related to the study, an effort has been made by the administration to keep employees and the University community informed of the status of the study. The "open forums" referred to by Ms. Tackett in her appeal did in fact occur - but not for the purpose of discussing the Buck study with faculty, staff and students. These forums were conducted to permit the University community an opportunity to learn about the budgetary constraints facing the University for the year 2000/2001 and to voice their input as to items which should receive the University's attention and priority in a tight fiscal budget. . . . Obviously, compensation was raised as a point of significant interest to employees in these sessions, and President Kustra was questioned as to the status of the Buck Study. As always, President Kustra sought to keep the University community informed as to the progress of the study.
In closing, Ms. Coleman reiterated that "once any final report is issued, it will be made available to the University community." To facilitate our review of the open records issues which Ms. Tackett's appeal raises, Ms. Coleman furnished this office with copies of representative portions of the ongoing study. Pursuant to KRS 61.880(2)(c), these records were not disclosed to third parties, and have been destroyed.
Our review of the sampling of documents extracted from the materials submitted to Eastern Kentucky University by Buck Consultants in the course of its ongoing compensation study confirms the University's position. That position finds ample support in existing authority. In a recent decision analyzing the propriety of a public's agency's reliance on KRS 61.878(1)(i) and (j) as the basis for denying access to a preliminary consultant's report, this office observed:
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Board of Examiners of Psychologists , above at 327, that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of the fact that:
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also, Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham , that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
00-ORD-139, p. 5, 6.
In the same open records decision, the Attorney General recognized that the protections afforded by KRS 61.878(1)(i) and (j) extend to reports and analyses prepared by outside consultants on behalf of a public agency. We noted that these decisions were summarized in 93-ORD-125, in which we affirmed the Transit Authority of River City's denial of a request for a Coopers & Lybrand report evaluating the performance of Yellow Enterprise, under its agreement with TARC, on the basis of KRS 61.878(1)(i) and (j). We quoted at length from 93-ORD-125:
In OAG 82-450, we held that a "Development Potential Analysis" prepared for Jefferson County by the Real Estate Research Corporation was exempt from public inspection under KRS 61.878(1)(j). At page 2 of that opinion we held:
Similarly, in OAG 84-337, we held that a completed report of SRI International of Menlo Park, California, on plans for future economic development in Louisville was excluded from public inspection because it contained opinion and recommendations which the public agency could accept or disregard in taking final action. In OAG 85-96, we reached the same conclusion, holding that a feasibility report on the construction of a high-rise office building prepared by Coldwell Realty under a contract with the City of Louisville could properly be withheld pursuant to KRS 61.878(1)(j) since it was preliminary in nature, "setting forth opinions and recommendations for review and consideration by the city." OAG 85-96, at p. 3. Finally, in OAG 88-60, we held that a public official properly denied a request to inspect a draft audit prepared by the E.P.A. and sent to the City of Owensboro, pursuant to KRS 61.878(1)(i) and (j), insofar as the audit was a preliminary report containing opinions and observations.
00-ORD-139, p. 7, citing 93-ORD-125, p. 7, 8. Further, we noted that since 93-ORD-125 was issued, the Attorney General had applied the reasoning contained therein to a report prepared by a private attorney retained by the City of Louisville evaluating the Louisville Policemen's Retirement Fund and submitting recommendations (96-ORD-38); a study prepared by an outside consultant hired by the Hardin County Schools examining the organizational and pay structure of administrators, classified staff, and teachers (96-ORD-121 and 96-ORD-122); an analysis prepared by a private corporation under contract with the Transportation Cabinet evaluating alternatives for the design of a connector road (98-ORD-70); and a presidential performance review prepared by an outside consultant for Kentucky State University (00-ORD-46). Finally, in the referenced open records decision, we affirmed Sanitation District No. 1's denial of a draft report prepared by Burton & Associates on the basis of KRS 61.878(1)(i) and (j) because it contained preliminary recommendations and opinions relating to proposed rate increases which had not been acted upon by adoption or rejection. 00-ORD-139, p. 9.
Although we cannot disclose the content of the representative documents submitted by EKU to this office pursuant to KRS 61.880(2)(c), our review of the documents supports the University's position that they consist of salary and job evaluation data compiled by Buck Consultants. The goal of this data compilation, as we understand it, is the development and implementation of a new job classification system at EKU, but the documentation presented to date demonstrates that the collection of data is still in progress and undergoing revision, and that Buck has not yet reached the stage at which recommendations will be made, opinions expressed, and policies formulated or recommended. Accordingly, although we are not persuaded that the materials submitted by Buck qualify for exclusion under authority of KRS 61.878(1)(j), we find that the materials can properly be characterized as a preliminary draft, and may therefore be withheld pursuant to KRS 61.878(1)(i).
KRS 61.878(1)(i) authorizes nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
It is apparent that the materials do not consist of "correspondence with private individuals" inasmuch as this part of the exception "is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2. Clearly, the materials do not fall within the parameters of this part of the exception. Nor do we believe the materials can be characterized as "notes." They were not "created as an aid to memory or as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." 97-ORD-183, p. 4 citing OAG 79-333; OAG 88-32; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting").
Instead, we find that the materials submitted by Buck Consultants to EKU to date constitute "a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38." 97-ORD-183, p. 4. The data contained in the materials was submitted by Buck to EKU for review and comment. Upon inspection by EKU officials, errors were found and omissions noted that have necessitated revision by Buck. Such incomplete and inaccurate data obviously could not have been the basis for final agency action, and EKU has expressly denied that it relied on the data in awarding $ 900 across the board salary increases for the current fiscal year. The fact that the materials submitted to date may have been referred to in one or more public forums conducted by EKU President Robert Kustra does not alter our conclusion inasmuch as this act, standing alone, does not signify formal adoption of a draft report. For these reasons, and upon the authorities cited, we conclude that Eastern Kentucky University properly denied the open records requests submitted by The Eastern Progress .
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.