Request By:
Dan Heckel
1401 Frederica Street
P.O. Box 1480
Owensboro, KY 42301David C. Fowler
Owensboro City Attorney
P.O. Box 10003
Owensboro, KY 42302-9003Waymond O. Morris
Mayor
P.O. Box 10003
Owensboro, KY 42302-9002Allen W. Dixon
Police Chief
222 E. 9th Street
Owensboro, KY 42303
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 City of Owensboro violated the Open Records Act in denying Messenger-Inquirer reporter Justin K. Willis' February 8, 2002 request for "copies of written and typed correspondence between Owensboro Police Chief Allen Dixon and Owensboro Mayor Waymond Morris and Owensboro City Commissioner Olive Burroughs from Jan. 28, 2002, through Feb. 8, 2002." For the reasons that follow, we affirm the City's denial of Mr. Willis' request.
In a response dated February 13, 2002, Owensboro City Attorney David C. Fowler notified Mr. Willis that on January 30, 2002 Mayor Morris and Commissioner Burroughs received "an identical, unsolicited personal memo from Chief Dixon," but denied Mr. Willis access to it on the basis of KRS 61.878(1)(i) and (j). Mr. Fowler explained:
This memorandum is a preliminary note or correspondence from a private individual and is not intended to give notice of any final action by any person or public agency. It also contains preliminary recommendations in which personal opinions are expressed or policies are formulated or recommended.
In addition, Mr. Fowler invoked KRS 61.878(1)(a) asserting that the memorandum "contains information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy of Chief Dixon . . . ." Shortly thereafter, Messenger-Inquirer City Editor Dan Heckel initiated this open records appeal questioning the City's reliance on the cited exemptions. While we do not agree with the City that the disputed memorandum qualifies for exclusion under KRS 61.878(1)(a) or (i), we find that it falls squarely within the parameters of KRS 61.878(1)(j) as a preliminary memorandum in which opinions are expressed or policies formulated or recommended.
[T]he General Assembly has determined "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, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. In construing this provision, the Kentucky Supreme Court has declared that "the unambiguous purpose of the Open Records Act is the disclosure of public records . . . [and] an extensive mechanism has been created for the exercise of the right of inspection. . . ." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) cited in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 470 (1997). The Court has further noted that in analyzing the Act "we are guided by the principle that 'under general rules of statutory construction, we may not interpret a statute at variance with its stated language.'" Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) citing Layne v. Newberg, Ky., 841 S.W.2d 181, 183 (1993). Nevertheless, "from the exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality. " Beckham at 578. With these principles in mind, we turn to the exception relied upon by the City of Owensboro to support its denial of Mr. Willis' request.
KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]" This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendation. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24. The underlying purpose of the exception is analyzed at page 4 of OAG 88-85:
[R]ecommendations 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.
Fundamental to the cited decisions is the recognition that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act, " Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
Beckham at 577-578.
In 00-ORD-89 the Attorney General was asked to review the City of Louisville's denial of a request for a memorandum prepared by the chief of police and directed to the deputy mayor concerning an internal review of an ancillary division. The City relied on KRS 61.878(1)(j), noting that the disputed document was "a preliminary, non-final, internal inter-office memorandum containing opinions and recommendations, " and we affirmed. Conversely, in 00-ORD-168 the Attorney General determined that the Purchase Area Development District improperly relied on KRS 61.878(1)(j) in resisting disclosure of a memorandum from the Department of Energy, containing post-employment opinions and advice, that was adopted by the Purchase Area Development District as the basis for a hiring decision. There, we held that the letter:
forfeited its preliminary characterization when it was adopted . . . as the basis in part of [the] decision to hire. . . . The courts and this office have long recognized that predecisional documents that are [adopted as the basis of] final agency action no longer enjoy the protection of KRS 61.878(1)(j).
00-ORD-168, p. 4, citing 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 Co., Ky., 830 S.W.2d 373 (1992).
Having reviewed the memorandum in dispute in this appeal, we conclude that it is more closely analogous to the memorandum at issue in 00-ORD-89, and that it therefore qualifies for exclusion from public inspection pursuant to KRS 61.878(1)(j). The memorandum is an internal communication in which the Chief expresses various opinions and makes recommendations concerning the department. Mr. Heckel presents no evidence that it has been adopted as the basis of any action on the part of the City of Owensboro, and the City steadfastly maintains that it is preliminary in nature. Based on these facts, we conclude that the memorandum is indeed shielded from disclosure by KRS 61.878(1)(j) unless or until it is adopted into final agency action.
Although we affirm the City of Owensboro's denial of Mr. Willis' request on the basis of KRS 61.878(1)(j), we find that the City's reliance on KRS 61.878(1)(a) or (i) was misplaced. We do not share the view that the memorandum qualifies for exclusion under either of these exceptions. Our position is premised on the longstanding recognition that "the privacy exemption [KRS 61.878(1)(a)] applies only to matters which are unrelated to public business [, and] matters relating to a public employee are of considerable public interest. " It is further premised on the notion that KRS 61.878(1)(i), relative to correspondence with a private individual "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; 01-ORD-104. Chief Dixon is not a private citizen and KRS 61.878(1)(i) therefore does not extend to the memorandum he submitted to Mayor Morris and Commissioner Burroughs.
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.