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 Louisville Free Public Library properly relied on KRS 61.878(1)(i) and (j) in denying Jerry M. Schott's April 28, 2000, request for "a copy of the report produced by Richard Waters, an Arizona consultant. " For the reasons that follow, and upon the authorities cited, we affirm the Library's denial of Mr. Schott's request.
Prior to submission of his April 28 request, Mr. Schott had requested and received a copy of the Library's Strategic Plan 2000, a document in which reference is made to a "Space Needs Study by Providence Associates." On appeal, he questioned whether the library can properly characterize the Waters Report as a preliminary record inasmuch as it has published Strategic Plan 2000, containing reference to the report, on its website, and furnished Mr. Schott with a copy of the Plan. In subsequent correspondence, Mr. Schott complained that the public is denied the opportunity for meaningful comment as a result of the Library's decision to withhold the report until final action is taken on it.
In a supplemental response directed to this office following commencement of Mr. Schott's appeal, City of Louisville Assistant Director of Law, Stephanie Harris, elaborated on the Library's position. She explained that the version of Strategic Plan 2000 that was released to Mr. Schott, and posted on the Library's website, "is not a final plan adopted by the City or County." Ms. Harris observed:
Other than approving the draft plan for circulation and public comments, the Commission has not made any final recommendations on the plan. Upon the expiration of the public comment period, the Commission will review all public comments and will then make recommendations with regard to the Strategic Plan 2000. Public comments will be incorporated into the final recommendation. The fact that the draft copy of the Strategic Plan 2000 document has been released to the public for public comments does not make the document final. The document has not been adopted by the City or County as its final action relative to the Library's recommendations.
Nor, Ms. Harris continued, has the City or County taken final action on Roger Waters' written report.
With reference to the Waters Report, Ms. Harris explained:
Mr. Schott states that Mr. Waters' report is referenced in the draft Strategic Plan 2000 document. Mr. Waters' written report is not referenced in the draft Strategic Plan 2000. During the Louisville and Jefferson County Library Advisory Commission's regular meeting of October 1999, Mr. Waters gave an oral presentation on the topic of creating larger regional libraries and providing larger full service libraries. A portion of Mr. Waters' oral presentation was incorporated into the Strategic Plan 2000 draft dated December 31, 1999. . . . Mr. Waters submitted a written draft report to the Library on February 3, 2000. This draft report has not been adopted by the Commission and has not been incorporated into any final agency action because the City has not taken any final action in relation to the strategic plans for the library or the recommendations contained in Mr. Waters' draft report.
The draft report submitted by Mr. Waters is an analysis of the current library facilities and a projection of future population and library needs. The City may not agree with some of the opinions and recommendations submitted by Mr. Waters and therefore, the process of finalizing the strategic plan is on going. The written report by Mr. Waters is exempt from disclosure pursuant to KRS 61.878 (1)(i) and (j) because the document is a preliminary, non-final report containing recommendations and opinions. The draft report has not been adopted or incorporated into any final action by the City. Both the draft Strategic Plan 2000 document and the consultant's report authored by Richard Waters remain preliminary in nature.
Relying on OAG 89-34 and 96-ORD-20, Ms. Harris reaffirmed the Library's denial of Mr. Schott's request.
In the period following commencement of his appeal, but before issuance of this decision, Mr. Schott submitted supplemental materials directed at establishing that final action had been taken on Strategic Plan 2000. These materials prompted the Attorney General to request additional documentation from the Library to substantiate its position, including a copy of the disputed Waters Report. In response to our inquiry concerning whether Strategic Plan 2000 was adopted by the Library Advisory Commission at its March meeting, Ms. Harris denied that the Plan was adopted. She stated that instead the Commission "approved the draft Strategic Plan for circulation for public comment. " Continuing, Ms. Harris observed:
The Commission intends to adopt the Plan at its September meeting. Steps that have been taken in anticipation of adoption of the Plan are as follows: (1) Comments received have been presented and discussed at meetings of the Library Advisory Commission and its planning committee; (2) At the July 18, 2000 meeting, the Library Advisory Commission directed the library director to incorporate several of the suggestions received from community members and to bring the resulting version back to the Commission for adoption at its September meeting. If the Commission votes for final adoption of the Plan at the September meeting, then the revised Strategic Plan 2000, which incorporates the public suggestions, will be published as the final version. The final version will be made available to the public.
The final question to which the Library was asked to respond was:
How is the subject of Richard Waters' written report different from the report he orally presented to the Commission in October, 1999? What action does the City anticipate taking on the written report, and why was it not incorporated into the Strategic Plan 2000 as were his oral recommendations?
Ms. Harris replied:
In his oral report to the Library Advisory Commission, Mr. Waters outlined an overall strategy to address growing needs for library service. He described dividing Jefferson County into four regions and developing a sufficient mix of large and small libraries in each region. He gave overall estimates of expansion needed to meeting the new standards of public library adequacy, along with anticipated cost of such expansion.
In his written draft, Mr. Waters gives detailed estimates of anticipated collection growth and space needs for each branch and the main library, along with square footage requirements for all possible operational functions for the next 20 years.
The written report was not incorporated into the draft Strategic Plan 2000 because of the following:
(1) Mr. Waters' written detailed draft report includes several incorrect assumptions about neighborhoods to be served, assumptions that need to be discussed and likely corrected through further work between the consultant and the Library staff. For example, his written draft makes recommendations for some neighborhoods that the Library feels would be inadequate and for other neighborhoods asserts growth in demand that may never materialize. Releasing this preliminary data could make the eventual best result much more difficult to attain.
(2) The branch-by-branch detailed portion of the work that Mr. Waters began in his written draft report is not complete.
In closing, Ms. Harris advised that as a consequence of inadequate funding, the Commission's plan to develop a "detailed master facilities plan" has been delayed. After sufficient funds are raised, she concluded, "the work begun in Mr. Waters' draft document can be completed."
On September 27, 2000, Mr. Schott notified this office that on September 26, 2000, the Louisville and Jefferson County Library Advisory Committee "voted to approve the Strategic Plan 2000 as final and to release it to the public." Again, Mr. Schott was moved to inquire, "If the plan is approved and final, can a sub-component, The Richard Waters Report, still be classified as preliminary and kept out of the public eye." Based on the arguments advanced by the Library since the inception of this appeal, we must conclude that the Waters Report is not "a sub-component" of Strategic Plan 2000, and that resolution of the issue of access to the Plan is not determinative of the issue of resolution of the issue of access to the Report. Having examined a copy of the Report furnished to us by the Library to facilitate our review, we find ample support for its position that it is a draft document that is currently undergoing correction and revision, and that it consists of opinions and recommendations that have yet to be acted upon, and therefore qualifies for exclusion from public inspection on the basis of KRS 61.878(1)(i) and (j).
In 00-ORD-139, and again in 00-ORD-195, this office reaffirmed its longstanding position on the issue of premature access to preliminary documents that fall within the parameters of KRS 61.878(1)(i) and (j). Copies of those decisions are attached hereto and incorporated by reference. In particular, we refer the parties to the discussions found at pages 5 through 11 of 00-ORD-139, and pages 4 through 9 of 00-ORD-195. Critical to our analysis in these decisions was the recognition that although the Open Records Act "exhibits a general bias favoring disclosure, "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), "the concept of governmental confidentiality has not been totally diluted by the . . . Act,"
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that from the exclusions to public inspection codified at KRS 61.878(1)(i) through (j), "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. "
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578. Although Mr. Schott makes a compelling argument for disclosure based on the public's right to know in order to promote informed public comment, we must adhere to precedent where it is so clearly controlling.
In 00-ORD-139, the disputed document consisted of a report, submitted to Sanitation District No. 1 by an outside consultant, containing "preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated and recommended concerning proposed rate increases the Board of Directors of Sanitation District No. 1 may wish to implement," 00-ORD-139, p. 1, which retained its preliminary characterization pursuant to KRS 61.878(1)(j) "until that report was evaluated, discussed, and approved by the District." 00-ORD-139, p. 12. "For good or ill," we noted at page 12 of the decision, "the Open Records Act does not require that a public record be disclosed while the public 'might still be able to influence the decision-making process.' . . ."
In 00-ORD-195, the disputed document consisted of salary and job evaluation data compiled for Eastern Kentucky University by an outside consultant, and submitted for review and comment. An in camera examination of the documents demonstrated "that the collection of data [was] still in progress and undergoing revision, and that [the consultant] had not yet reached the stage at which recommendations [would] be made, opinions expressed, and policies formulated and recommended. " 00-ORD-195, p. 8. We characterized the document as "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" that were excluded from inspection by KRS 61.878(1)(i). 00-ORD-195, p. 8 citing 97-ORD-183, p. 4. Noting that the university had expressly denied that any final agency action had been based on the draft report, we opined:
The fact that the materials submitted to date may have been referred to in one or more public forums . . . does not alter our conclusion inasmuch as this act, standing alone, does not signify formal adoption of a draft report.
00-ORD-195, p. 9.
Our examination of the Waters Report supports the Library's position that it qualifies for exclusion under both KRS 61.878(1)(i) and (j). Although we cannot disclose its contents, we can describe it generally as a draft report, containing errors and inaccuracies noted by one or more reviewers, and subject to revision, on a broad range of library related subjects not confined to the "space needs study" referenced in Strategic Plan 2000. The report also contains opinions and recommendations relative to this broad range of topics that have yet to be formally adopted or approved by the Library Advisory Commission. Indeed, as in 00-ORD-195, the Library expressly denies that it has formed the basis of any final decision-making. Assuming, for the sake of argument, that the study referenced in Strategic Plan 2000 was one and the same with the Waters Report currently under review, we do not believe that the report forfeited its preliminary characterization by virtue of having been referenced in a public venue, here the Internet. As in 00-ORD-195, this fact, standing alone, "does not signify formal adoption." 00-ORD-195, p. 9. Clearly, it is a "work in progress" protected from premature disclosure by KRS 61.878(1)(i) and (j), notwithstanding the fact that the public interest might be served by discretionary release.
On the subject of discretionary release, the Attorney General observed in 00-ORD-139 and 00-ORD-195 that "when the only interest affected by disclosure is a governmental interest, [as opposed to a privacy interest,] public agencies can make discretionary disclosures, " notwithstanding the applicability of an exemption to the record released. 00-ORD-139, p. 11, 12 and 00-ORD-195, p. 7. We reiterate:
It is clear that the primary impetus [for enactment of the Open Records Act] was the recognized need to insure public agency accountability by establishing a statutory right of access to public records, and not to thwart access by requiring public agencies to withhold exempt records which they were otherwise inclined to release. In enacting this statutory scheme, the legislature did not intend to tighten an agency's grip on public records, thereby making it more difficult to gain access. Broader rights of access, rather than more restrictive rights of access, are the goal, and the means of achieving this goal is the fullest responsible disclosure.
Although we find no error in its decision to exercise its discretion in favor of nondisclosure, the Louisville Free Public Library may wish to bear these observations in mind in the future in the interest of promoting even greater public awareness of its long-term mission and goals.
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.