Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Commerce Cabinet violated the Kentucky Open Records Act in denying the request of Debbie Scoppechio for "hard copies of the final presentations" made by six advertising agencies in response to a "Request for Proposal" issued by the Cabinet, "in conjunction with the other Cabinets of state government and the Department of Agriculture," for an advertising/research agency "to consolidate these services across cabinet lines" and develop a "brand" for the Commonwealth. 1 Because the requested records do not constitute "preliminary drafts, notes, [or] correspondence with private individuals," it is the decision of this office that the Cabinet's reliance on KRS 61.878(1)(i) was misplaced. Having failed to satisfy its statutory burden of proof, the Cabinet must provide Ms. Scoppechio with the requested copies in accordance with KRS 61.874(1).
By letter dated June 11, 2004, Mr. Rick Duffy, responding on behalf of Creative Alliance, advised the Cabinet that he was "in receipt of the scoring information" that it had provided to Ms. Scoppechio 2 in response to Creative Alliance's initial request, but had "only received two of the three sets of scoring numbers[.]" Accordingly, Creative Alliance was "repeating [its] request" that the Cabinet "furnish all scoring information" at its earliest convenience. In addition, Creative Alliance requested "hard copies of the final presentations" from the following agencies:
. New West/Fitzgerald
. Doe Anderson
. Paul Schultz & Co.
. Meridian
. Two Can
. Price Weber
As defined by Creative Alliance, "hard copy of the final presentation" includes "any copies of the presentation, copies of creative materials, handouts, exhibits, and other supporting material" used by each of the named agencies in their "pitch to the scoring committee." In a timely response, Teresa J. Hill, Executive Director, Office of Legal Services, advised Mr. Duffy that her office had forwarded copies of the requested scoring sheets to each participant in the "ad RFP process," clarifying that only two sets of scoring sheets existed, the first of which was generated during Step One of the scoring process, and the second of which was generated during Step Three. 3 As to the "hard copies of final presentations, " Ms. Hill denied Creative Alliance's request on the basis of KRS 61.878(1)(i), 4 parroting the language of that provision without further explanation. Creative Alliance now appeals from the Cabinet's partial denial of its request.
Responding on behalf of Creative Alliance, Ms. Scoppechio asserts that its "information regarding the existence of three scores, not two, has been further confirmed[,]" and the scores it seeks "are the ones recorded immediately after each presentation. " As correctly argued by Ms. Scoppechio, the Cabinet provided "no explanation of how the cited exception applies to the records withheld, as required by KRS 61.880(1)." 5 Although Creative Alliance agrees that the requested records are preliminary "until negotiations are completed," it is Ms. Scoppechio's understanding that the Cabinet has taken final action with respect to this matter by entering into a contract with New West/Fitzgerald. As such, "the related proposal documents are public records subject to the Act and, unless otherwise exempted by KRS 61.878, are open to public inspection. "
In construing this mandatory provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky., 926 S.W.2d 856, 858 (1996)(emphasis added). In other words, a "limited and perfunctory response," does not "even remotely compl[y] with the requirements of the Act -- much less [amount] to substantial compliance." Id.
In its response to Creative Alliance's request, the Cabinet has merely cited the exception which purportedly applies to the records withheld. Noticeably absent from the Cabinet's response is any explanation as to how the exception applies to those records as expressly required by KRS 61.880(1). To this extent, the Cabinet's response is procedurally deficient. As we first emphasized in 93-ORD-125, the procedural requirements of the Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." Id., p. 5. Edmondson establishes that a public agency has the burden of justifying its denial of a request to access public records by referencing the applicable statutory exception and briefly explaining how that exception applies to the particular documents withheld pursuant to this provision. Accordingly, it has long been the position of this office "that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882 to justify the nondisclosure of a public record. " 02-ORD-152, p. 5 (citations omitted). In denying future requests submitted under the Open Records Act, therefore, the Cabinet should adhere to the foregoing principles.
In supplemental correspondence received by this office following commencement of the instant appeal, Ms. Hill elaborates on the Cabinet's position. As explained by Ms. Hill, Step One of the RFP process "was the first step of the scoring process" which "included a list of 7 criteria" by which the vendors' proposals would initially be judged. A copy of each scoring sheet was provided to each of the agencies, including Creative Alliance, which participated in the RFP process. 6 Step Three entailed the selection of seven finalists who gave oral presentations to the Selection Committee. Along with their oral presentations, the finalists "gave outlines of their presentations to the Commonwealth, although they were not required to give the written outline. " During this stage of the process, the members of the Selection Committee were provided with two identical scoring sheets, one of which was stamped "Draft," with the other being stamped "Final." Copies of both the Draft and Final scoring sheets "were also distributed to all of the participants." In short, "all of the score sheets were given to all of the participants for their review" according to the Cabinet, notwithstanding Creative Alliance's assertion to the contrary. Citing OAG 91-21, the Cabinet further argues that the "presentations of the final seven agencies selected to make [] presentations are properly exempt under the Open Records Act [,]" because "[n]either the presentation of the winning agency, nor the presentation of any of the finalists, was incorporated into the final agency action. "
Turning to the substantive issues presented, our analysis begins with Creative Alliance's first contention regarding the number of scoring sheets in existence. According to Creative Alliance, its "information regarding the existence of three sets of scores, not two, has been further confirmed." In its supplemental response, however, the Cabinet attempts to clarify its position relative to this issue. As explained by Ms. Hill, the "draft sheets were used by the selection committee to help them record their thoughts on each participant[,]" and the Cabinet voluntarily released the "Draft" scores because it "felt it would be helpful to participants to review this information," an assertion which is supported by the record.
In addressing factual disputes of this nature between a requester and a public agency, the Attorney General has consistently said:
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, it 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.
03-ORD-61, p. 2, citing OAG 89-81, p. 3; See also 04-ORD-106; 04-ORD-59; 04-ORD-053; 03-ORD-204. Likewise, the current record does not contain sufficient information for this office to conclusively resolve the factual issue of whether Creative Alliance has received "all of the scores, " although the record does appear to substantiate the Cabinet's assertion that it has released all existing records which are responsive to this aspect of Creative Alliance's request. As long recognized by the Attorney General, "[t]his office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." 01-ORD-4, p. 2, citing OAG 86-35, p. 5. That being the case, further elaboration as to this factual issue is unwarranted, so the question becomes whether the Cabinet properly relied upon KRS 61.878(1)(i) in denying Ms. Scoppechio's request for "hard copies of the final presentations. " Because the Cabinet's interpretation of KRS 61.878(1)(i) is based on a faulty premise, namely, that the "Vendor Presentations" can properly be characterized as preliminary drafts, notes, or correspondence with private individuals, it is the decision of this office that the Cabinet's reliance on this provision was misplaced.
Among the records excluded from the application of KRS 61.870 to 61.884 absent a court order are:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
KRS 61.878(1)(i). When called upon to render a decision involving statutory interpretation, our function is "to ascertain and give effect to the intent of the General Assembly" as reflected by the language employed.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, we must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.2d 831, 835 (2000). In the absence of a specific statutory definition, we "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 477, 480 (1983); see also
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Resolution of this appeal turns on whether the final presentations to which Creative Alliance seeks access qualify as preliminary drafts, notes, or correspondence with a private individual within the meaning of KRS 61.878(1)(i). Our analysis is guided by these fundamental principles as well as the mandate of KRS 61.871. 7
In construing KRS 61.878(1)(i), the Attorney General has consistently 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 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.
OAG 78-626, p. 2. Although our research has revealed no authority that is directly on point, this office has construed the language of KRS 61.878(1)(i) in various contexts. See 02-ORD-86; 01-ORD-104; 00-ORD-98; 99-ORD-220; 97-ORD-183. In our view, the Cabinet's interpretation is inconsistent with this line of decisions.
A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 8 97-ORD-183, p. 4. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. As evidenced by the foregoing, no credible argument can be made that the final presentations at issue constitute "drafts" or "notes" according to the "common and approved uses" of those terms. It stands to reason that comprehensive presentations submitted during the final phase of a selection process are not accurately described as drafts which are, by definition, preliminary in nature. To the contrary, such presentations are "final" in the relevant sense. In other words, a final presentation "does not represent a tentative version, sketch, or outline of a formal and final written product such as the draft reports [at issue in 94-ORD-38, 93-ORD-67, or OAG 89-34.]" 97-ORD-183, p. 4. Likewise, a presentation is not a note. "It was not created as an aid to memory or as the basis for a fuller statement," as, for example, are conventional notations taken at a meeting. Id.; 93-ORD-67, p. 9 (KRS 61.878(1)(j) is "intended to protect random notations made by individuals present at a meeting."). Given this determination, the remaining question is whether the subject presentations are properly characterized as "correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " 9 In short, this characterization is equally inapplicable.
In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence with private individuals," 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." Id., p. 2. Clearly, this exception does not extend to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6. In OAG 90-7, this office concluded that the Finance and Administration Cabinet had improperly relied upon KRS 61.878(1)(i), then codified as KRS 61.878(1)(g), in denying the public access to correspondence between the Cabinet and a private contractor regarding its contract with the Cabinet. Of particular relevance here, the Attorney General explained:
KRS 446.015 provides, in substance, that words and phrases are defined in accordance with common and everyday meanings. We believe "private individuals," in common and everyday meaning, means private human beings. Such phrase, would not, in common and everyday meaning, refer to a corporation.
A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a "private individual," as such phrase is used in KRS 61.878(1)[(i)], that the contractor might be said to have, with administration of a governmental or public contract. Cf., Gertz v. Robert Welch, 418 U.S. 323, at 344, 94 S. Ct. 2997, at 3009 (1974).
Id., p. 4. Characterizing the document in question as "a letter of a contractor under a public contract involving administration of that contract," we concluded that "such correspondence may not be properly characterized as 'correspondence with a private individual' within the meaning of KRS 61.878(1)[(i)]." Id. OAG 90-7 has been repeatedly affirmed over time.
In 99-ORD-220, for instance, the Attorney General held that the Kentucky Racing Commission had improperly relied upon KRS 61.878(1)(i) in denying a request for copies of applications for "'2000 racing licenses and 2000 racing dates for all Kentucky racetracks . . . includ[ing] all financial filings that the commission requires accompany these requests[,]'" modifying OAG 90-142 to the extent it held that disclosure is mandatory upon request only after final governmental action. Id., p. 1. In so doing, this office engaged in the following analysis:
Although tendered by private entities or individuals, these applications cannot be considered "correspondence with private individuals," as contemplated by KRS 61.878(1)(i), because they are submitted with the expectation that the Racing Commission will rely upon them to take some action, either approval or denial of a license.
. . .
If [] a disputed record cannot be characterized as correspondence with a private individual, the question of whether final action has been taken by the agency becomes irrelevant. . . . Simpl[y] stated, we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if the first part of the analysis, requiring that the disputed record consist of correspondence, is not met. Such [a record] becomes an open record upon submission, and all or any portion of the [record] can properly be withheld only upon a showing by the agency that it qualifies for exclusion under one or more of the other exceptions to public inspection.
Id., p. 5. Here, as in 99-ORD-220, the records in dispute cannot properly be characterized as correspondence with a private individual, preliminary drafts or notes. 10 Contrary to the Cabinet's assertion, therefore, the final action inquiry is moot rather than determinative. To hold otherwise would defy both logic and precedent.
To the extent that OAG 91-21, upon which the Cabinet relies, is inconsistent with this position, it is hereby modified. Subsequent decisions interpreting KRS 61.878(1)(i) compel a different outcome. As we observed in 00-ORD-98, "[d]isclosure is not contingent upon the occurrence of final agency action. " Id., p. 5; 02-ORD-86 ("We believe that 99-ORD-220, a copy of which is attached hereto and incorporated by reference, is controlling"), p. 8. 11 Having failed to advance any other argument in support of its denial, the Cabinet must provide Ms. Scoppechio with copies of the requested records upon receiving advance payment of a reasonable copying fee, including postage. KRS 61.874(1).
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.846(4)(a). 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.
Footnotes
Footnotes
1 As explained by the Cabinet, the RFP outlined the process for submitting proposals and the scoring process. Interested vendors "were to submit a package including designated materials" to be scored by a selection committee consisting of representatives from each Cabinet.
2 Ms. Scoppechio identifies herself as the CEO of Creative Alliance.
3 In its supplemental response, the Cabinet characterizes Step Two of the RFP process as the "question[] and answer session" which is "not relevant" to the issues on appeal.
4 Although the Cabinet mistakenly mistakenly cites KRS 61.878(1)(h) in support of its position, both initially and on appeal, this provision excludes only those "[r]ecords of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations . . ." from the application of KRS 61.870 to 61.884 absent a court order, and, therefore, is clearly inapplicable. Presumably, the Cabinet intended to cite KRS 61.878(1)(i), which contains the quoted language. KRS 61.878(1)(i) was codified as KRS 61.878(1)(h) prior to the enactment of the 1992 amendments to the Open Records Act, but was substantively unchanged.
5 KRS 61.880(1) dictates the procedure that a public agency must follow in responding to a request submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
6 By letter dated May 7, 2004, Ms. Hill notified each of the participating agencies that the "final contract with New!West, LLC was signed on May 5, 2004[,]" enclosing "copies of the scoring sheets from the Comprehensive Marketing/Advertising RFP process (steps 1 and 3) of all participants." Upon receiving notification of this appeal, Ms. Hill sent copies of the referenced score sheets to this office via messenger for our review along with copies of the other attachments which included: a) a list of the cabinet representatives serving on the Selection Committee; b) a summary of the scoring sheets; c) the original scoring sheets from Step One, and d) the "Draft" and "Final" scoring sheets from Step Three.
7 KRS 61.871 provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is 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.
8 In the absence of a statutory definition, a dictionary may be consulted to ascertain the "common and approved" meaning of a term. See Young v. Commonwealth, Ky., 968 S.W.2d 670, 672 (1998).
9 "Correspondence" is defined as "Communication by the exchange of letters." The American Heritage College Dictionary 321 (4th ed. 2002). Even assuming arguendo that comprehensive presentations submitted by private agencies in response to a specific RFP directive during the final phase of a selection process could properly be characterized as correspondence, our holding today is a logical extension of the reasoning contained in the relevant authorities.
10 More recently, we applied this reasoning to applications for purchase of conservation easements submitted in connection with the Purchase of Development Rights Program, holding that such applications do not qualify for exclusion as correspondence with private individuals pursuant to KRS 61.878(1)(i), but instead become subject to inspection upon submission to the Fayette County Rural Land Management Board. 02-ORD-86.
11 Our holding in 99-ORD-220 was expressly limited to applications for licenses to do business in the Commonwealth "in view of the unforeseeable consequences which might flow from [a broader] holding[.]" In so doing, however, we left the door open for a case-by-case analysis of whether correspondence submitted by private individuals or entities to a public agency with the expectation that the agency will take action can properly be withheld pursuant to KRS 61.878(1)(i). Given the relatively sensitive nature of the records at issue in the aforementioned decisions, the subject presentations are necessarily encompassed in the category of records which cannot be withheld on the basis of KRS 61.878(1)(i).