Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fort Thomas Independent Schools violated the Open Records Act in responding to Cheryl Hansman's March 28, 2002 request for copies of "all minutes taken at the meeting 03/07/02." We conclude that, with the exception of a procedural violation, the agency's actions did not constitute a violation of the Act.
In her letter of appeal, dated April 22, 2002, Ms. Hansman, stated that as of that date, she had not received any communication, written or verbal, from the school system.
After receipt of notification of Ms. Hansman's appeal and a copy of her letter of appeal, Suzanne Cassidy, counsel for Fort Thomas Independent Schools, by letter dated April 29, 2002, provided this office with a response to the issues raised in the appeal. In her response, Ms. Cassidy stated:
At the outset, please note that the Fort Thomas Independent Schools disputes that the records sought by Ms. Hansman are subject to the Open Records law. KRS 61.878[1](i). The "minutes" requested are actually notes taken at a private meeting attended by Ms. Hansman, her attorney Carl Turner, Rita Byrd, Assistant Superintendent, and Mary Lou Simpson, Special Education Coordinator. A copy of the notes are attached to this response. A review of those notes reveals that they are preliminary drafts or notes which clearly are not intended to give notice of final action of a public agency.
Having said the foregoing, Ft. Thomas Schools acknowledge that it inadvertently failed to respond to Ms. Hansman's request. A copy of the notes has been sent to Ms. Hansman by the District as a matter of courtesy as opposed to a legal obligation. The failure to respond to Ms. Hansman's request resulted from a breakdown in communication between District staff.
After receipt of Ms. Cassidy's response, Ms. Hansman provided this office with a reply. In her reply, she contends that she does not believe that the copies provided are copies of the original minutes and asks whether the response of Ms. Cassidy was correct in saying they did not have to give her a copy of the minutes.
We are asked to determine whether the actions of the Fort Thomas Independent Schools relative to Ms. Hansman's request violated the Open Records Act. For the reasons that follow, we conclude that the actions of the agency, with the exception of a procedural deficiency, were substantively in compliance with the Act.
Addressing first the procedural violation, in her letter of appeal, Ms. Hansman complains that the school system had not responded to her open records request. In its response to the letter of appeal, the agency admitted it had failed to respond due to a breakdown in communication among the staff.
KRS 61.880(1) requires a public agency to respond to an open records request within three business days after receipt of the request. The failure of the agency to respond within this time period constituted a procedural violation of the Open Records Act. Steps should be taken that open records requests are timely responded to in the future.
Addressing the substantive issue, the school system stated it had provided Ms. Hansman with a copy of the requested records. Ms. Hansman questions whether she has been provided with all the records. Under the facts before us, we conclude the agency has complied with the Open Records Act by providing Ms. Hansman with the records she requested. If there remain any records in dispute, the requester can initiate another appeal to this office or proceed directly to the appropriate circuit court. KRS 61.880; 61.882. In OAG 89-81, the Attorney General stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The parties to this appeal should continue to cooperate to resolve any differences or misunderstandings related to records sought by Ms. Hansman.
Although it is not necessary to the resolution of this appeal, we note that our review of the records provided by the Fort Thomas Independent Schools indicate they were handwritten notes taken by members of the school system at the meeting in question. KRS 61.878(1)(i) authorizes the 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.
This office has consistently held that preliminary interoffice and intraoffice memoranda setting forth opinions, observations, and recommendations which are not adopted as part of final agency action may properly be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). The same is true of random notations made by individuals present at a meeting. These exemptions are intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. See, e.g., OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26; 96-ORD-134. They are premised on the notion that:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (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 uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
Only if these predecisional documents are adopted as part of any final action of the public agency do they forfeit their preliminary characterization. This issue is moot in this appeal, however, as the handwritten notes were provided to Ms. Hansman.
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.
Cheryl Hansman11 Dumfries AvenueFt. Thomas, KY 41075
Rita ByrdAssistant SuperintendentFt. Thomas Independent Schools281 N. Ft. Thomas AvenueFt. Thomas, KY 41075
Suzanne CassidyO'Hara, Ruberg, Taylor, Sloan and Sergent25 Crestview Hills Mall Road - Suite 201P.O. Box 1741Covington, KY 41017-0411