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 Transportation Cabinet properly relied on KRS 61.878(1)(i) in denying Courier-Journal Frankfort Bureau Chief Tom Loftus' January 5, 2001, request for copies of "any logs or other records which list the requests considered by the Transportation Secretary and/or State Highway Engineer for funding from the Highway Construction Contingency Account." For the reasons that follow, we conclude that the Cabinet's reliance on the cited exemption was misplaced and that copies of the disputed record(s) must be released to Mr. Loftus.
In his January 10, 2001, response to Mr. Loftus' request, Commissioner Ed Roberts, Department of Administrative Services and Custodian of Records, stated that the Cabinet "is not aware of any official log or record which lists the requests considered by the Transportation Secretary and/or State Highway Engineer," but acknowledged that the State Highway Engineer "does possess personal notes that he has kept as a work paper." It was Commissioner Roberts' position that this document "is of a preliminary and personal nature and is within the scope of KRS 61.878(1)(i)." Upon this basis, he denied Mr. Loftus access to the document.
In a supplemental response directed to this office following commencement of The Courier-Journal's appeal, Assistant General Counsel Todd Shipp elaborated on the Cabinet's position. He explained that the disputed record:
was prepared solely as a personal chart or personal log by J. M. Yowell, State Highway Engineer, as a means of personal reminder where approved funding requests are in the process. The document is no different that you or myself writing down a list of our cases and making notes of where the case stands and when it was received. It is all in his or his staff's handwriting. It is shared with no one and never culminates in some final document intended for public posterity. It is a simple, running, personal note of a very busy man to remind himself of where things are. In fact, all the projects noted on the list are ones that Mr. Loftus has received information on already. It does not refer to rejections at all. This document is much more of a work paper and a personal reminder ledger than the Governor's appointment calendar which was held to be a work paper or preliminary draft within the scope of KRS 61.878(1)(i). Courier-Journal and Louisville Times Co. v. Brereton C. Jones, Ky. App., 895 S.W.2d 6 (1995); 99-ORD-156; 97-ORD-188.
In closing, Mr. Shipp asserted that the record "is not integral to the funding process and not in the official chain of materials associated with this," but is instead "a personal work document of the State Highway Engineer," and therefore "not an official state record . . . subject to release."
On appeal, Mr. Loftus argues that "[a]s the only public record that reflects the receipt and disposition of . . .requests [for funding from the Highway Construction Contingency Fund]," the record to which he was denied access "cannot be considered preliminary drafts and notes covered in exemption (i) . . ." Nor, he maintains does it qualify for exclusion as correspondence with a private individual within the scope and meaning of KRS 61.878(1)(i). In his view, the public's interest in monitoring how and why the Cabinet funds some projects and does not fund others is best served by disclosure of the record withheld. We agree.
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 record at issue in this appeal does not consist of "correspondence with private individuals" inasmuch as this part of KRS 61.878(1)(i) "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. The Cabinet does not maintain, nor could it persuasively argue, that the disputed record qualifies for exclusion under this part of KRS 61.878(1)(i). Whether the record can be characterized as a preliminary draft or note that otherwise qualifies for exclusion under KRS 61.878(1)(i) is a closer question.
In 97-ORD-183, this office dissected the language of KRS 61.878(1)(i):
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . ." Id. at 804. [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9. (KRS 61.878(2)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] 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. In that decision, the Attorney General held that a printout of the Treasurer's unclaimed and abandoned property list could not be withheld under authority of KRS 61.878(1)(i). See also, 98-ORD-11 (daily roster used by payroll clerk to prepare employee paychecks not exempt pursuant to KRS 61.878(1)(i)).
Applying the rule of strict construction codified at KRS 61.871, and bearing in mind that the Open Records Act "exhibits a bias favoring disclosure, "
Board of Examiners v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992), we conclude that the disputed record, which was submitted to this office for review upon request pursuant to KRS 61.880(2)(c), 1 does not qualify for exclusion under KRS 61.878(1)(i). The record is not a draft. It does not represent a tentative version, sketch, or outline of a formal and final written product. Compare 00-ORD-195 (incomplete faculty salary survey data, that was subject to revision, properly withheld under KRS 61.878(1)(i)). Nor is it a note. Although the Cabinet argues that it was created by the State Highway Engineer as a mere aid to memory, it cannot be persuasively argued that it consists of nothing more than random notations, or written or shorthand notes created as a basis for a fuller statement. Compare, 99-ORD-206 (general counsel's handwritten notes from meetings exempt per KRS 61.878(1)(i)); 00-ORD-132 (handwritten note of telephone conversation exempt per KRS 61.878(1)(i)).
Although we are restricted from disclosing the contents of the two page document, it can be characterized, in general terms, as a computer generated spreadsheet containing both word processed and handwritten entries. The majority of the entries are word processed, and it appears that at least two individuals have made handwritten entries. It cannot be likened to "work papers . . . [or] yellow pads [which are] filled with outlines, notes, drafts and doodlings[, and] which are unceremoniously thrown in the wastebasket or may in certain cases by kept in a desk drawer for future reference." OAG 78-626, p. 2. No doubt the record is used by the State Highway Engineer as an aid to memory, but this alone is not dispositive. The record at issue in this appeal memorializes the receipt and disposition of requests for funding from the Highway Construction Contingency Fund. Notwithstanding the Cabinet's disclaimer that it is not an "official state record," it clearly falls within the definition of a public record, 2 and does not, in our view, enjoy protection under KRS 61.878(1)(i). 3 Accordingly, we find that the Transportation Cabinet improperly relied on KRS 61.878(1)(i) in denying Mr. Loftus' request for any logs or other records documenting requests for funding from the Highway Construction Contingency Fund.
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.
Tom Loftus The Courier-Journal 614-B Shelby StreetFrankfort, KY 40601
Ed RobertsCommissionerDepartment of Administrative Servicesand Custodian of RecordsTransportation CabinetState Office BuildingFrankfort, KY 40601
Todd ShippGeneral CounselTransportation CabinetState Office BuildingFrankfort, KY 40622
J. M. YowellState Highway EngineerDepartment of HighwaysTransportation CabinetState Office BuildingFrankfort, KY 40622
Footnotes
Footnotes
1 Although the Attorney General requested a copy of the record to which Commissioner Roberts referred in his January 10 response to Mr. Loftus' request for any logs or records listing requests considered by the Transportation Cabinet and/or State Highway Engineer for funding from the Highway Construction Contingency Fund "going back to Jan. 1, 1992," the Cabinet furnished us with a single two page document dated August 19, 1999, and captioned "Proposed Use of FD39 Funds - F400." The Cabinet offered no explanation for the paucity of records produced, and it is by no means clear that this constituted full compliance with our March 30 request. It is to be understood that our holding in this appeal extends to any other records in existence that are responsive to Mr. Loftus' request, and that if access to such records must be denied on the basis of their nonexistence or unavailability, the Cabinet is obligated to provide some explanation per KRS 61.8715.
2 KRS 61.870(2) defines the term "public record" as:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
3 We reject the Cabinet's argument that the record at issue in this appeal "is much more a work paper and a personal reminder ledger than the Governor's appointment calendar. " The latter record was deemed exempt in Courier-Journal and Louisville Times Co. v. Brereton C. Jones, above at 8, largely because "its essence was deliberative "rather than factual, and the public's interest in nondisclosure therefore clearly outweighed the public's interest in disclosure. This is not the case in the appeal before us inasmuch as the essence of the disputed record is factual, and the public interest is best served by disclosure.