Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether City of Villa Hills violated the Open Records Act in denying Art E. Schutte's request for various records relating to Lori Teichman Schutte. For the reasons that follow, we affirm the City's denial of access to these records.
By letter dated September 16, 2003, Mr. Schutte submitted an open records request to Sue Kramer, City Clerk, requesting the City to produce for inspection and copying the following records, which are the subject matter of the instant appeal:
4. All documents relating in any way to Lori Teichman Schutte, the wife of Art Schutte.
5. All e-mail communications between Mayor Mike Sadouskas and Lori Teichman Schutte.
6. All faxes, correspondence, notes and other documentation of communications between Mayor Mike Sadouskas and Lori Teichman Schutte.
8. All records of communications between the Police Department and/or individual police officers and Mayor Mike Sadouskas relating to Lori Teichman Schutte.
Responding on behalf of the City, by letter dated October 7, 2003, Ms. Kramer denied Mr. Schutte's request by providing the following explanation to each of the requests listed above:
Request denied. Any documents the City may have regarding Lori Teichman Schutte are exempt pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j). The City has no documents intended to give notice of any final action regarding Lori Teichman Schutte.
As a result of the City's denial of these requests, Mr. Schutte, by letter dated March 9, 2004, initiated the instant appeal. In his letter of appeal, Mr. Schutte argued:
I am requesting the release of such information and I reference KRS 61.884, copy enclosed and so noted as Exhibit D. Lori Teichman Schutte is my wife and therefore, this information should be released.
After receipt of notification of the appeal and a copy of the letter of appeal, Michael A. Duncan, counsel for the City, provided this office with a response to the issues raised in the appeal. Expanding on the City's original response, Mr. Duncan explained, in relevant part:
The City of Villa Hills denied Mr. Schutte's requests # s 4, 5, 6 and 8 on the basis of KRS 61.878(1)(i) and KRS 61.878(1)(j). The reason the City denied the requests were because any documents the City may have pertaining to Lori Teichman-Schutte are preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final actions of a public agency pursuant to KRS 61.878(1)(i) or is a preliminary recommendation or memorandum in which opinions are expressed. Additionally, any of the City's records pertaining to Lori Teichman-Schutte that the City may have are exempt from inspection pursuant to KRS 61.878(1)(a) since the public record contains information of a personal nature (about Ms. Teichman Schutte, and others, which information was collected by the Villa Hills Police in the course of an investigation surrounding notice to the City of Villa Hills about alleged threatening verbal comments by Mr. Schutte, and about an Emergency Order of Protection that was issued in the Schutte/Teichman-Schutte divorce).
Addressing Mr. Schutte's argument that he had a right under KRS 61.884, to see all records related to his wife, Mr. Duncan advised:
. . . Mr. Schutte's assertion that KRS 61.884 gives him access to his estranged wife's records that would otherwise be exempt simply because she is "related" to him, is seriously misplaced. The phrase "public records relating to him" means to him personally, not to him because he is "related" to his wife by marriage. . . .
We are asked to determine whether the City's denial of access to the requested records violated the Open Records Act. For the reasons that follow, we conclude that the City's denial was proper and did not constitute a violation of the Act.
KRS 61.878(1)(i) and (j), authorize 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.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only after they are adopted by the agency as part of its final action. 00-ORD-139;
City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 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., Ky., 830 S.W.2d 373 (1992).
These open records decisions reflect the Attorney General's commitment to implement the intent of the General Assembly in carving out these exemptions. This office has frequently noted that KRS 61.878(1)(i) and (j) are 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 discussions of matters of concern to the agency. See, e.g., 94-ORD-118 and 93-ORD-125.
In addition, this office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 98-ORD-27. In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
The City explained in its responses that any documents it may have pertaining to Lori Teichman-Schutte are preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final actions of a public agency pursuant to KRS 61.878(1)(i) or is a preliminary recommendation or memorandum in which opinions are expressed., under authority of KRS 61.878(1)(i) and (j). As such, these records retain their preliminary character until such time as they are adopted and made a part of final agency action. Accordingly, we conclude that, because no final action had yet been taken, the City properly denied access to the requested records on the basis of KRS 61.878(1)(i) and KRS 61.878(1)(j).
Finally, Mr. Schutte argues that, pursuant to KRS 61.884, he is entitled to inspect records that mention Lori Teichman-Schutte because she is his wife. We disagree. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
The statute is personal to the person mentioned in the public record. See 00-ORD-224 (requester's status as executrix of her father's will had no bearing on resolution of records access issues under the Open Records Act, and particularly KRS 61.884.) The fact that Lori Teichman-Schutte is Mr. Schutte's wife does not entitle him to access to records in which she is mentioned by name.
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.
Art E. Schutte835 Keeneland Greens DriveUnion, KY 41091
Sue Kramer, City Clerk719 Rogers RoadVilla Hills, KY 41017
Michael A. DuncanCity Attorney541 Buttermilk PikeP.O. Box 175710Covington, KY 41017-5710