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 Kentucky Community and Technical College System (KCTCS) violated the Open Records Act in denying the open records requests of Charles B. Wells for copies of documents from Dr. Candace Gosnell, Vice President, KCTCS, on or about June 16, 2003, to four named KCTCS employees with the subject being "Staff Title Notification regarding KCTCS Classification Program." For the reasons that follow, we conclude that the denials did not constitute a violation of the Act.
On June 24, 2003, Mr. Wells submitted two letters to KCTCS requesting certain documents from KCTCS. The first letter requested:
A copy of each memorandum and/or letter from Dr. Candace Gosnell dated on or about June 16, 2003 and addressed separately and individually to each of the following people, Sheila M. Marcum, Rebecca S. Brown, and Barbara Bramblett with the subject being "Staff Title Notification regarding KCTCS Classification Program." All of these people currently work for Ashland Technical College in Ashland, Kentucky.
The second letter requested the same records, but named a different KCTCS employee currently working for Ashland Technical College in Ashland, Kentucky.
By letter dated June 27, 2003, Beverly H. Haverstock, General Counsel and Official Records Custodian, KCTCS, denied Mr. Wells' request, advising:
Dr. Gosnell, KCTCS Vice President of Internal Affairs, has informed that the new classification system for staff is not yet final. The records you requested are preliminary memoranda. Each staff employee was mapped over to a title and band in the new KCTCS classification system, based upon the functions of that employee's position as of February 2003. These map-overs (title and band) are now subject to review for possible change in an appeal process that may be initiated by the individual staff employee. Moreover, some of the titles and bands are subject to change system-wide as additional input from staff is received. Reviews and changes are expected to take place individually and system-wide until the end of July. Therefore, the documents requested are preliminary in nature and exempt from disclosure under KRS 61.878(1)(j) , which exempts preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
As a result of this denial, Mr. Wells initiated the instant appeal. In his letter of appeal, he argued that the records he requested were not preliminary because the records had "already been issued by the KCTCS central office for disbursement to the employees at Ashland Community College." He enclosed a sample copy of one of the letters that was released for disbursement.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Haverstock provided this office with a response to the issues raised in the appeal. In her response, she stated:
Obviously, the requester had obtained at least one copy of the Memorandum, since he attached a "sample" to his appeal letter. However, interestingly enough, the requestor failed to provide the entire Memorandum. Conspicuously absent from the "sample" was the last part of the Memorandum that explained how each individual employee could submit a Classification Reconsideration Request. Within the part not provided, the Memorandum specifically states, "Upon completion of this review, the employee will be notified in writing by July 31, 2003, regarding the approval or denial of the request." (See Attachment 1, a complete copy of the Memorandum. )
In addition to the language in the Memorandum itself, every KCTCS employee has Internet access to many documents explaining the work in progress related to the new KCTCS Classification Plan. One document entitled Preliminary Recommendations of Band Classifications was posted to the KCTCS Website on June 30, 2003, and is further proof of the preliminary nature of the records requested. (See, Attachment No. 2.) Moreover, in our response we informed the requestor that entire position titles and bands were subject to change - system wide- during the July review period. (See, Attachment 3.)
It is very apparent that the individual Memorandums requested are planning documents - subject to review and change. The fact that a Memorandum has been given to an individual employee in no way determines that the document is final and subject to public inspection as the requester argues in his appeal.
In sum, since the documents are preliminary planning documents, subject to review and change with or without an individual employee's request for reconsideration, we are of the opinion that they are not subject to inspection under the Open Records Act, pursuant to the exemption in KRS 61.878(1)(j).
(Emphasis in original.)
We are asked to determine whether the KCTCS's denial of Mr. Wells's requests violated the Open Records Act. For the reasons that follow, we conclude it did not violate the Act.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This office has long recognized that records that are preliminary in nature, such as working drafts that are subject to revision, fall squarely within the parameters of KRS 61.878(1)(j). OAG 89-34; 94-ORD-38; 97-ORD-51, and 97-ORD-113.
The sample copy of the Memorandum from Dr. Gosnell provided by KCTCS explained how each individual employee had until June 30, 2003 to submit a Classification Reorganization Request in writing on a prescribed form to the employee's local Human Resource Director. The Memorandum further provided in relevant part:
The college will review and provide input on the request and forward this to the System Office for review by the classification and compensation workgroup. Upon completion of this review, the employee will be notified in writing by July 31, 2003, regarding the approval or denial of the request.
(Emphasis in the original.) The KCTCS, in its responses, indicated that some titles and bands were subject to change state-wide as additional input was received from staff, and that reviews and changes in the new classification system were expected to take place individually and state-wide until the end of the July review period.
Accordingly, under these facts, we conclude that the requested records were preliminary in nature and the KCTCS properly denied Mr. Wells's requests of June 24, 2003, under authority of KRS 61.878(1)(j).
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.
Charles B Wells, Executive DirectorAFT-KentuckyP.O. Box 4110Frankfort, KY 40604-4110
Beverly H. HaverstockGeneral Counsel and Official Records CustodianKY Community & Technical College System2624 Research Park DriveP.O. Box 14092Lexington, KY 40512-4092