Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Danville properly relied on KRS 61.878(1)(i) and (j) in denying Advocate Messenger Managing Editor John A. Nelson's July 27, 2004, request for a copy of "the petition submitted to the city on behalf of residents of the Duncan Hill area." For the reasons that follow, we find that the city's reliance on the cited exceptions was misplaced.
In a letter dated August 2, 2004, Legal Counsel for the City of Danville Edward D. Hays invoked KRS 61.878(1)(i) and (j), reciting the language of those exceptions and explaining that "the City of Danville has taken no final action with respect to this matter . . . ." Shortly thereafter, The Advocate Messenger initiated this appeal, asserting that "a petition of citizens to their government [does not] fit [] the bill for purposes of [KRS 61.878(1)(i) and (j)] . . . [inasmuch as] there is . . . nothing 'preliminary' about a petition."
In supplemental correspondence directed to this office following commencement of this appeal, the city elaborated on its position. The city explained that in June, 2004, it was approached by a local developer to discuss the purchase of a tract of land owned by the city, and that in the course of a subsequent public meeting the city commission retired to executive session "under the exception permitted for discussions regarding the purchase or sale of real estate by the city." It was during this executive session, the city continued, that the developer "circulated some petitions purportedly signed by local persons who supposedly supported the sale of the land by the city for the purposes advanced by the developer. " The city confirmed that no final action had been taken in this matter, and expressed the view that the petition qualified for exclusion from public inspection under KRS 61.878(1)(i) as correspondence with private individuals and KRS 61.878(1)(j) as a record "advocat [ing] or recommend [ing] certain policy action." Respectfully, we disagree.
[T]he General Assembly has determined "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." KRS 61.871. In construing this provision, the Kentucky Supreme Court has declared that "the unambiguous purpose of the Open Records Act is the disclosure of public records . . . [and] an extensive mechanism has been created for the exercise of the right of inspection. . . ." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) cited in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 470 (1997). The Court has further noted that in analyzing the Act "we are guided by the principle that 'under general rules of statutory construction, we may not interpret a statute at variance with its stated language.'" Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995) citing Layne v. Newberg, Ky., 841 S.W.2d 181, 183 (1993). Ultimately, the Court has concluded, the Open Records Act "exhibits a bias favoring disclosure. " Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992). With these principles in mind, we turn to the exceptions relied upon by the city to support its denial of The Advocate-Messenger's request.
The city chiefly relies on KRS 61.878(1)(i) authorizing 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. 1
In 00-ORD-168, this office 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. " 00-ORD-168, p. 2. Clearly the exception does not extend to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6. In the latter opinion, the Attorney General concluded:
Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids.
OAG 90-142, p. 6.
In 99-ORD-220, we applied this reasoning to applications from private entities or individuals to a governmental agency for licenses to do business, modifying OAG 90-142 to the extent that that opinion held that disclosure was mandatory only after final governmental action, and determining that the applications become open records upon submission. On this issue, the Attorney General opined:
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. . . . Simply 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.
99-ORD-220, p. 7. In 01-ORD-86, we extended this reasoning to applications for the purchase of conservation easements, holding that the applications did not qualify for exclusion from public inspection as correspondence with private individuals pursuant to KRS 61.878(1)(i) , but instead became open records upon submission. See also, 00-ORD-98 (holding that Finance and Administration Cabinet's reliance on KRS 61.878(1)(i) to withhold correspondence with a private contractor on issues relating to the administration of the contract was misplaced. )
We are not persuaded that the record in dispute, a petition signed by individuals who support the sale of the city owned property, qualifies as correspondence with a private individual. As "a formal written document requesting a right or a benefit from a person or group in authority," Webster's II New Riverside University Dictionary, p. 879 (1984), it is a public declaration of support to which these individuals affixed their signatures. It therefore cannot be characterized as "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurance of confidentiality, " but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property. The city acknowledges that the signers affixed their signatures with the goal of "advocat [ing] or recommend [ing] certain policy action." Because it cannot be properly characterized as correspondence with a private individual, it became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in this matter. Accord, OAG 80-450; OAG 83-134; 00-ORD-172.
Similarly, we reject the city's claim that the petition is a preliminary memorandum in which opinions are expressed and recommendations made and that it therefore qualifies for exclusion from public inspection under KRS 61.878(1)(j). The purpose underlying this exception has been widely discussed, and turns on the recognition that:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4. KRS 61.878(1)(j) is thus "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." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125.
That purpose is not served by the nondisclosure of a formal written instrument on which the signers have publicly declared their support for the sale of city owned property. Although memoranda exchanged by members of the commission and staff might qualify for exclusion under KRS 61.878(1)(j) until such time as final action is taken, and thereafter if not adopted by the commission as part of that action, that exception has never been construed to apply to a petition submitted to a public agency by members of the public evidencing support for, or opposition to, a contemplated course of action. The petition was a final, formal document, as to its signers, upon submission, and the fact that the city had taken no action on the sale of the property does not alter this conclusion. We therefore find that the Danville City Commission violated the Open Records Act in denying The Advocate-Messenger's 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.
John A. Nelson The Advocate Messenger 330 S. FourthP.O. Box 149Danville, KY 40423-0149
Edward D. Hays114 South Fourth StreetP.O. Box 1517Danville, KY 40423-1517
Donna GrovesCity ClerkP.O. Box 670Danville, KY 40423
Footnotes
Footnotes
1 The city does not argue that the petition is a preliminary draft or note. Nor do we believe that such an argument could reasonably be made. See 97-ORD-183 ( analyzing the terms "draft" and "note" in the context of KRS 61.878(l)(i)).
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