Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Fayette County Board of Education violated the Open Records Act in denying the request of Lisa Deffendall, Education Writer, Lexington Herald-Leader, for copies of documents related to the Board's negotiation of the October 30, 2000 purchase of a twenty acre parcel of land from James Barlow. For the reasons that follow, we conclude that the Board properly denied the request because the requested documents were either exempt under KRS 61.878(1)(i) and (j) or did not exist.
In her request, Ms. Deffendall asked for copies of the following documents:
Phone logs documenting conversations between agents of the school system (attorney Virginia Gregg, Facilities director Wayne Young, Superintendent Robin Fankhauser, members of the school board) and Mr. Barlow or agents working on his behalf.
Memos or e-mails about land negotiations sent to school board members from members of the staff or between members of the staff.
Records documenting the initial contact between the school system and Mr. Barlow, or his agents regarding the possible purchase of land.
Correspondence between the agents of the school system and Mr. Barlow, or representatives working on his behalf.
Information handouts given to school board members during closed sessions where the land deal was discussed.
Responding to Ms. Deffendall's request on behalf of the Board, Elizabeth J. Fugazzi, Assistant to the Superintendent, advised:
Please be advised that we are unable to provide copies of "any and all documents related to the negotiation of the 10/30/2000 land purchase from James Barlow." I have gathered and reviewed the telephone message logs, memoranda, e-mails, notes, correspondence, and drafts of agreements contained in the files of various employees/agents of the Board. I have determined from that review that these documents are exempt from inspection/release under 61.878(1)(j) as they are "preliminary recommendations . . . in which opinions are expressed or policies formulated or recommended. "
Additionally, the documents located in the files of Virginia Gregg are exempted from release under KRS 61.878(1)(k) and (l) as they are considered either attorney work product and/or subject to attorney/client privilege.
As you know, the final agreement adopted by the Board at its October 30, 2000, meeting has previously been provided to you as requested. This is the only document that represents the "final agency action" regarding this property.
Following the Board's denial of Ms. Deffendall's request, Thomas W. Miller, counsel for Lexington Herald-Leader Co. and Ms. Deffendall, submitted a request to the Board for a reconsideration of its denial. In his letter of appeal, Mr. Miller indicates that Ms. Gregg verbally rejected his request. In his request, Mr. Miller summarized the documents asked for in Ms. Deffendall's request as follows:
A fair summary of the documents set forth in the Request is they include correspondence and notes of discussions in which the two parties negotiated the terms of the Agreement to purchase the property, and information provided to the School Board members which they considered before voting to authorize the execution of the Agreement. It is noteworthy that Ms. Deffendall has not requested any real estate appraisals, engineering or feasibility studies.
Mr. Miller argues that the requested records are no longer preliminary if they played a part in the Board's decision to purchase the property. In support of this position, he states that case law and opinions of this office interpreting KRS 61.878(1)(h) support his argument that, once the final decision was made to purchase the property, as evidenced by the signed agreement to purchase, the requested records lost their preliminary character and must be disclosed.
Addressing the Board's reliance upon the attorney-client privilege and the work-product doctrine, Mr. Miller argues that unless the Board can show the requested records of its attorney fall squarely within those class of records exempt under either the attorney-client privilege and the work-product doctrine, they must be disclosed. He further argues that because the Board has taken final action to purchase the property by the execution of the Agreement by all parties, all items protected by the attorney-client privilege and the work-product rule are subject to disclosure.
Finally, arguing that because there was no suggestion that any of the requested documents were prepared in anticipation of litigation, Mr. Miller states the Board should produce the "phone logs documenting conversations between . . . attorney Virginia Gregg . . . and Mr. Barlow or agents working on his behalf," as well as "[c]orrespondence between [Virginia Gregg] and Mr. Barlow or representatives working on his behalf." He further noted that the request was not seeking any legal opinions of the Board's attorney.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, General Counsel, Fayette County Public Schools, provided this office with a response to the issues raised in the letter of appeal. Expanding on the Board's original response, Ms. Gregg addressed each of Ms. Deffendall's requests in the order presented in her original request.
Addressing first, the request for phone logs, Ms. Gregg stated:
Based upon an extensive review of all documents requested herein, by both the persons identified and their support staff, it has been determined that there are no such documents in existence for Robin Fankhauser or Wayne Young. There are four such telephone messages in the possession of Virginia Gregg.
Ms. Gregg cited numerous prior decisions of this office in support of the Board's position that it could not provide copies of records that did not exist. In addition, she explained that the search for the requested records entailed a manual search, page-by-page review of files and telephone message pads.
Addressing the request for copies for the telephone messages for Virginia Gregg , Ms. Gregg stated:
The telephone messages for Virginia Gregg from August 10, August 20, September 11, and September 25, 2000, are being withheld based upon KRS 61.878(1)(i), as they represent "preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. "
The same documents are withheld based upon KRS 61.878(1)(j) as they are "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
These documents are also withheld based upon KRS 61.878(1)(f) as they are "the contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to the acquisition of property, until such time as all of the property has been acquired." (Emphasis added.)
Additionally, these documents are withheld based upon KRS (1)(k) and (l) as these documents are protected by the attorney-client privilege and attorney-client work product.
The Board's supplemental response also denied access to "memos or e-mails about the land negotiations sent to school board members from members of the staff or between members of the staff" and "correspondence between agents of the school system and Mr. Barlow or representatives working on his behalf" under the same exemptions and reasons cited above for the phone logs, i.e., KRS 61.878(1)(f), (i), (j), (k), and (l).
The Board's supplemental response to the request for records "documenting the initial contact between the school system and Mr. Barlow, or his agents regarding the possible purchase of the land" and "[i]nformation handouts given to school board members during closed sessions where the land deal was discussed" indicated that no such documents existed and, thus, could not be provided.
We are asked to determine whether the responses of the Board violated the Open Records Act. For the reasons that follow, we conclude the Board properly denied access to the requested documents.
KRS 61.878(1)(i) and (j) authorize 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.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In a series of opinions, the Attorney General has affirmed public agency denial of open records requests for access to preliminary drafts, notes, correspondence with private individuals not intended to give notice of final agency action, and inter-office communications used in formulating opinions and recommendations pursuant to KRS 61.878(1)(i) and (j) on the theory 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 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; see also OAG 86-64; OAG 88-24; OAG 89-39; OAG 90-97; 97-ORD-97. Underlying these opinions is the recognition that:
Not every paper in the office of a public agency is . . . subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer used in hammering out official action within the function of his office.
OAG 78-626, p. 2; see also 97-ORD-73; 98-ORD-144.
In 99-ORD-206, we held that e-mail transmissions between state agency employees in which opinions were expressed were properly withheld because they were never incorporated into final agency action.
In OAG 91-117, an opinion cited by both parties, we held that any documents generated prior to the Transportation Cabinet's final decision to construct a road, and not incorporated into that decision, may be properly withheld under what is now codified as KRS 61.878(1)(i) and (j). We further directed that the Cabinet must, however, release any document that can be said to constitute final agency action and any preliminary documents incorporated therein.
In the instant case, the requester was provided with a copy of the executed Agreement, adopted by the Board on October 30, 2000, to purchase the 20 acres of land. This was a record reflecting final agency action. See 97-ORD-191 in which we held that a properly executed real estate purchase contract of a school system to purchase land reflected final agency action, even though the contract contained a contingency clause that the contract may not be carried out if the school system failed to obtain financing through the sale of bonds. We found the contract to be final action because it memorialized the parties' agreement relative to the acquisition of the property and their mutual obligations.
The records withheld by the Board consisted of phone logs documenting conversations between agents of the school system and Mr. Barlow or agents working on his behalf; correspondence between the agents of the school system and Mr. Barlow, or representatives working on his behalf; and memos or e-mails about land negotiations sent to school board members from members of the staff or between members of the staff.
Our review of the Agreement reveals that none of these requested preliminary documents were incorporated into or made a part of that document. Accordingly, we conclude the Board properly withheld disclosure of the documents under authority of KRS 61.878(1)(i) and (j). Unless the records withheld by the Board were incorporated into final action of that agency, the Agreement, they do not forfeit their preliminary characterization and need not be released. Because these exemptions support the Board's decision to withhold the requested records, we see no need to assess its argument that the attorney-client privilege and work product rule also supports nondisclosure of Ms. Gregg's records that fell within the parameters of the requested record.
Moreover, since the requester acknowledged that it was not requesting any real estate appraisals, engineering or feasibility studies, documents that are exempt from disclosure under KRS 61.878(1)(f), we need not address arguments raised under that exemption.
Finally, we find that the requester's reliance upon KRS 61.878(1)(h) and case law and prior opinions of this office construing that exemption as authorizing disclosure of the preliminary documents to be misplaced. This exemption applies to a discreet class of records created by a law enforcement agency or an administrative agency "involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." KRS 61.878(1)(h). The records involved in this appeal were not of the class of records exempted under KRS 61.878(1)(h) and authorities cited by the requester to support their disclosure are inapposite to this appeal.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. In its response to the letter of appeal, the Board advised there were no phone logs in existence for Robin Fankhauser or Wayne Young documenting conversations between agents of the school system and Mr. Barlow or his agents. The Board further advised that no records, documenting the initial contact between the school system and Mr. Barlow, or his agents regarding the possible purchase of land and information handouts given to school board members during closed sessions where the land deal was discussed, existed. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
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.