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 Department of Education violated the Open Records Act in denying Anita Mosley's August 19, 2002, request for "any and all correspondence regarding Chemical Environmental Solutions, Inc., or Wayne Mosley, that . . . [the Department] sent or received for the year of 2002." 1 For the reasons that follow, we affirm in part the Department's denial of Ms. Mosley's request on the basis of KRS 61.878(1)(i) and (j), but find that some of the records withheld do not constitute preliminary drafts or notes within the meaning of KRS 61.878(1)(i), or preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended within the meaning of KRS 61.878(1)(j). Further, we find that the Department's reliance on KRS 61.878(1)(h) as an additional basis for denying access was misplaced.
In a response dated August 30, 2002, Anne E. Keating, Assistant General Counsel for the Department of Education, advised Ms. Mosley that "[t]he matter of services offered by Mr. Mosely [sic] is currently under investigation and accordingly under KRS 61.878(2)(h) [sic] the documents requested are not currently available." Additionally, Ms. Keating asserted that "[o]ther records are protected by (2)(i) [sic] . . . and by (2)(j) [sic]." She indicated that at the conclusion of the investigation the Department would reevaluate Ms. Mosley's request and provide her with copies of "any documents available under the Open Records Law." Shortly thereafter, Ms. Mosley initiated this appeal to the Attorney General, noting that "if there was an investigation, we were never notified of it, nor of the outcome, or even what the issues are."
In supplemental correspondence directed to this office following commencement of Ms. Mosley's appeal, Ms. Keating acknowledged that the Department's original response to the open records request "was delayed until August 30," and that the Department "should have responded to [it] promptly." 2 Continuing, she observed:
The Department is currently investigating allegations that certain vendor/s have been visiting school districts reportedly suggesting that he/they represent the Kentucky Department of Education in providing waste removal services. These services most recently appear to be the removal of laboratory classroom hazardous waste with a possible focus on chemicals which may be re-sold.
In response to our request under KRS 61.880(2)(c) 3, Ms. Keating subsequently furnished this office with copies of the disputed records.
Our review of the disputed records confirms, in part, the propriety of the Department's reliance on KRS 61.878(1)(i) and (j) as a basis for withholding written and email communications between the Department, local school districts and officials, and various law enforcement agencies relative to its ongoing investigation of Chemical Environmental Solutions, Inc., and records forwarded to the Department that relate thereto. Some of the records appearing in the investigative file, however, cannot be properly classified as preliminary drafts or notes, or preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended. These records, which will be generally identified below, cannot be withheld on the basis of KRS 61.878(1)(i) or (j). Because the Department is not a law enforcement agency or an agency involved in administrative adjudication, none of the disputed records can properly be withheld on the basis of KRS 61.878(1)(h).
We address first the Department's argument that the disputed records are protected from disclosure by KRS 61.878(1)(h). That exception authorizes the nondisclosure of:
Records of law enforcement agencies or agencies 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 . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing this provision, the Attorney General has repeatedly recognized:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3.
In 95-ORD-95, we were asked to review the Transportation Cabinet's denial of a request for various records pertaining to its Rural and Secondary Roads Program, and a particular construction and maintenance project. The Cabinet relied on KRS 61.878(1)(h) in denying access, noting that an investigation was underway by an undisclosed authority, and the records had been subpoenaed. We rejected the Transportation Cabinet's position, observing:
The General Assembly mandates, at KRS 61.871, "that free and open examination of public records is in the public interest," and that the exceptions to disclosure contained in the Open Records Act, including KRS 61.878(1)(h), "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." Implementing this legislative mandate, in University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The court reasoned:
Having failed to satisfy the first part of the three-part test found in KRS 61.878(1)(h), the court soundly rejected the University's claim.
95-ORD-95, p. 3.
Extending the court's reasoning to the facts of the appeal before us in 95-ORD-95, we concluded that the Transportation Cabinet was not a law enforcement agency or an agency involved in an administrative adjudication, and were thus "spared debate on the issue of whether the records satis[fied] either or both of the remaining parts of the three-part test . . ." 95-ORD-95, p. 4; see also 01-ORD-67 (Cabinet for Health Services' reliance on KRS 61.878(1)(h) as a basis for denying requester access to records relating to Medicaid payments was misplaced insofar as the Cabinet did not assert that it was acting as a law enforcement agency or an agency involved in administrative adjudication) . Because the Department of Education is not a law enforcement agency and has acknowledged that it is not involved in an administrative adjudication relative to Chemical Environmental Solutions, Inc. or Mr. Mosley, we find that 95-ORD-95 and 01-ORD-67 are controlling. The Department's reliance on KRS 61.878(1)(h) fails under the first part of the three-part test.
Nevertheless, the Department is currently conducting an inquiry into "the matter of services offered by Mr. Mosley," and exploring the remedies that might be available to it. Toward this end, the Department has compiled a file consisting in large part of written and email communications between the Department, local school districts and officials, and various law enforcement agencies, and records forwarded to the Department from the local districts that relate thereto. In our view, many of these records fall squarely within the parameters of KRS 61.878(1)(i) and (j).
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, and quoted above, as well as by the Kentucky Supreme Court's holding in
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of the fact 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 drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended. " KRS 61.878(1)[(i) - (j)]. From these 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 . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also,
Courier-Journal and Louisville Times Co. v. Jones, Ky.App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Guided by these principles, and an evolving body of case law, the Attorney General has consistently recognized that public records that are preliminary in nature forfeit their exempt status only if they are adopted by the agency as part of its final action.
City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co, Ky.App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Times Co., above.
Some of the records located in the Department's file can properly be characterized as preliminary drafts and notes that are excluded from inspection by operation of KRS 61.878(1)(i). With reference to this exception, the Attorney General has observed:
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)(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 . . . are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2. In 97-ORD-183, this office dissected the language of the exemption:
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 . . . ." [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. (KRS 61.878(1)(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. To the extent that the Department's file consists, in part, of drafts and notes that have not been, and may never be, adopted as the basis of final agency action, we find that these records were properly withheld.
By the same token, some of the records located in the Department's file can properly be characterized as preliminary memoranda in which opinions are expressed and policies formulated or recommended. In discussing the purpose underlying this exception, the Attorney General has observed that KRS 61.878(1)(j) is "intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussion of matters of concern to the agency." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125; see also 99-ORD-206 (affirming denial of email communications in which opinions were expressed, but which were not adopted into final agency action, on the basis of KRS 61.878(1)(j)). To the extent that the Department's file consists, in part, of written and email communications, and attachments thereto, in which opinions are expressed and policies formulated concerning the ongoing inquiry, we find that these records were properly withheld.
We do not share the Department's view that every record located in its investigative file qualifies for exclusion under KRS 61.878(1)(i) or (j). Although we cannot disclose the specific content of the records which, in our view, are nonexempt, we can generally describe them as those records that Mr. Mosley apparently disseminated to school districts as a means of promoting his chemical waste removal services. While these records may have some evidentiary value to the Department in whatever course of action it elects to pursue, they cannot be properly characterized as preliminary drafts or notes within the meaning of KRS 61.878(1)(i), or preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended within the meaning of KRS 61.878(1)(j). Accordingly, we believe these records must be disclosed to Ms. Mosley in response to her open records request.
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.
Anita MosleyChemical Environmental Solutions, Inc.300 Deerfield LaneLexington, KY 40511
Russell MooreDivision of CurriculumKY Department of EducationCapital Plaza Tower, 18th Floor500 Mero StreetFrankfort, KY 40601
Anne E. KeatingKY Department of EducationCapital Plaza Tower, 18th Floor500 Mero StreetFrankfort, KY 40601
Footnotes
Footnotes
1 Ms. Mosley's request included emails or faxes "pertain[ing] to a claim that [Chemical Environmental Solutions, Inc.] is fraudulent in nature," "instruct[ing] . . . school related officials to call the State Police if they are contacted by [Chemical Environmental Solutions, Inc.]," "insinuat[ing] or stat[ing] that the school . . . is to . . . withhold payment of funds for invoices owed to Chemical Environmental Solutions, Inc.," and "regarding quotes that were given by Chemical Environmental Solutions, Inc."
2 The Department having acknowledged the violation of KRS 61.880(1), we will not belabor this issue.
3 KRS 61.880(2)(c) provides that the Attorney General "may . . . request a copy of the records involved [in the open records dispute] but they shall not be disclosed."