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 Office of the Governor violated the Open Records Act in denying Courier-Journal reporter Elizabeth Beardsley's requests for, inter alia, "itineraries for the Governor's trade mission to Europe" on the basis of KRS 61.878(1)(d), (i), and (j), as construed in
Courier-Journal & Louisville Times Company v. Jones, Ky. App., 895 S.W.2d 6 (1995). 1 Fundamental to the resolution of this question is the determination whether an itinerary is the functional equivalent of an appointment ledger, calendar, or schedule, which the Kentucky Court of Appeals has conclusively established qualify for exclusion from public inspections pursuant to KRS 61.878(1)(i) and (j). For the reasons that follow, we find that because an itinerary is functionally equivalent to the ledgers, calendars, and/or schedules adjudged exempt in Courier-Journal v. Jones, above, the Office of the Governor did not violate the Open Records Act in denying Ms. Beardsley's request for the travel itineraries for the Governor's trade mission to Europe.
On appeal, The Courier-Journal asserts, generally, that in order to exercise its right to know, "the public must have access to information concerning the official travels of the Governor in Europe," and questions, specifically, whether the Governor's Office met its statutory burden of proof in denying Ms. Beardsley's request. Challenging the Governor's reliance on KRS 61.878(1)(i) and (j), The Courier observes:
[T]he itinerary is not "preliminary" because the trip has already been taken. As such, the itinerary is not likely to change or develop over time. For the same reason, an itinerary -- as an account or record of a journey that has already taken place -- fails to meet the requirement of being a draft, note, or correspondence with private individuals.
. . .
Similarly, an itinerary is neither a recommendation nor a memorandum dealing with opinions or policies -- it is a factual account of where and when the Governor traveled.
Acknowledging that in Jones, above, the Court of Appeals concluded that the Governor's appointment schedule is "nothing more than a draft of what may or may never take place," The Courier attempts to distinguish the travel itinerary at issue in this appeal, arguing that the itinerary "is neither preliminary nor subject to change [inasmuch as] . . . the Governor has already taken the trip to Europe," and that "unlike the appointment ledger in Jones, the Governor's itinerary reflects his trip to Europe, which was official Commonwealth business that is an unquestionably legitimate subject of public interest. "
In supplemental correspondence directed to this office following commencement of The Courier-Journal's appeal, Mr. Alexander elaborated on the Governor's position, asserting that the "focal point of controversy in this appeal concerns our denial of The Courier's request to inspect 'itineraries . . .'" Relying on Courier-Journal v. Jones, above, OAG 78-626, 93-ORD-25, 93-ORD-36, and 03-ORD-165, he maintained that there is no difference between the Governor's schedule and the Governor's itinerary . . . [insofar as] the Governor's itinerary, whether he is in Frankfort or out of the country, is nothing more than a schedule of tentative activities utilized for the purpose of providing some semblance of orderliness to his working day." To require disclosure of the Governor's itinerary, he concluded, "is to completely ignore the explicit governing and dispositive authority of the Court's decision in Jones and other precedent holdings of the Attorney General . . . ." We agree.
In Jones, above, the Kentucky Court of Appeals analyzed the propriety of then Governor Brereton Jones' denial of media requests for access to his daily appointment ledgers 2 on the basis of KRS 61.878(1)(i) and (j). The court resolved this issue in favor of the Governor, identifying KRS 61.878(1)(i) as "the crux of this case," id., and
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994) as "the latest expression" of that exception from the Kentucky Supreme Court. The Court of Appeals quoted from Beckham:
KRS 61.878(1). Also excluded 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 or recommended." KRS 61.878(1) [(i) and (j)]. From the 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 statutory rights of personal privacy and the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Id. at 8 quoting Beckham.
The court also referenced OAG 78-626, affirming the City of Louisville's denial of a request for the mayor's appointment calendar, in which the Attorney General reasoned:
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 employer 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. We believe that the Mayor's appointment calendar is of such a nature. Although the appointment calendar contains a record of activities and contacts by the Mayor, a record which his office will probably want to keep on file for some time, we nevertheless believe that it is nothing more than a work paper, a preliminary draft, notebook or memorandum.
Ultimately, the Court of Appeals concluded that it:
view[ed] the Governor's appointment schedule as nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference.
Id. at 10.
The Kentucky Court of Appeals found support for its holding in
Times Mirror Co. v. Superior Court of Sacramento, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991), a case "emanat[ing] from a sister state's court of last resort." The Jones court quoted extensively from the California court's opinion, including the "balancing of interests" analysis which the latter court resolved in favor of the Governor. The California court weighed the Governor's interest in protecting the essentially deliberative nature of his calendar against the public interest in determining "whether the state's highest elected officer was attending diligently to the public business, " id. at 9 quoting Times Mirror, and concluded that the Governor's interest "in nondisclosure 'clearly outweigh[ed]' the public interest in disclosure. " Id. at 8 quoting Times Mirror.
The Kentucky Court of Appeals also quoted with approval that portion of Times Mirror dealing with past schedules:
[T]he risks of disclosure outline [d] above apply in many cases regardless of whether the meetings are past or future. Participants may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed, and executive judgments in ongoing policy matters may be prematurely revealed. Indeed, the Times's dogged determination to obtain even past schedules and calendars of the Governor is telling testimony to their continued vitality and relevance to the decisionmaking process.
Recognizing that "access to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence, are essential to effective governance in a representative democracy," the Times Mirror court concluded that the "interest served by not disclosing the Governor's appointment calendars and schedules clearly and substantially outweighs the public interest in their disclosure. "
As noted, The Courier-Journal's attempt to distinguish Jones, above, is chiefly premised on its own balancing of interests analysis in which the balance tips in favor of disclosure, and on the fact that the requested itinerary records past activities and is "neither preliminary nor subject to change." These arguments were expressly rejected in Jones, above, and we are not at liberty to depart from clearly established precedent. We see no meaningful distinction between a calendar, 3 a schedule, 4 and an itinerary, 5 and these terms are used interchangeably throughout Jones and other supporting authorities. Our review of the records submitted to this office by the Governor, in response to the Attorney General's KRS 61.880(2)(c) request for documentation substantiating denial of Ms. Beardsley's request, confirms this view. On behalf of the Governor, Mr. Alexander explained:
The document captioned "Schedule" was created by staff in the Governor's Scheduling Office and is representative of the appointment ledger, calendar, or schedule regularly maintained by the Office of the Governor. The document captioned "2004 Europe Trip at a Glance" is the appointment ledger, calendar, or schedule for the trip that was created by staff at the Cabinet for Economic Development, which was solely responsible for developing and promoting the trip, including the scheduling of all events and activities related to the trip. There are no additional appointment ledgers, calendars, or schedules, other than those provided, maintained by Governor's Office for the referenced period.
The latter document contains a timetable for the Governor's travels abroad and overlaps with the departure and return dates which also appear on the former document. The former document contains no entries for the period the Governor was abroad, but, as noted, does contain a timetable for his departure and return dates. Their content is nearly identical on these overlapping days. Regardless of whether they are characterized as calendars, schedules, or itineraries, they represent "a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness. " Jones at 10.
Although there is a recognized public interest in ascertaining whether the state's highest elected official is "attending diligently to the public business" both here and abroad, via access to his calendar, schedule, or itinerary, Kentucky's Court of Appeals has determined that that interest must yield to the interest in governmental confidentiality reflected in KRS 61.878(1)(i) and (j). And although the latter interest may be less compelling when the official activities recorded in that schedule, calendar, or itinerary have already occurred, the Court of Appeals has adopted the reasoning of the California court in Times Mirror and determined that "the risks of disclosure . . . apply . . . regardless of whether . . . [those actions] are past or future." Resolution of this appeal turns on judicial precedent dating back to 1995 and this office's recognition that "if changes in the law are to be made, they should be made by the legislature and if subtle interpretations [of the law] are to be made, they should be made by the Court." OAG 80-54, p. 4. On this basis, we affirm the Governor's denial of The Courier-Journal's request. 6
Because KRS 61.878(1)(i) and (j), as construed in Courier-Journal v. Jones, above, authorize nondisclosure of the itineraries for the Governor's trade mission to Europe in their entirety, and are dispositive of this appeal, we need not address other arguments relied upon by the Governor in support of the denial of Ms. Beardsley'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.
Distributed to:
Jon FleischakerDinsmore & Shohl, LLC1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Mike AlexanderDeputy General CounselOffice of the Governor Suite 100 Capitol700 Capitol AvenueFrankfort, KY 40601
Footnotes
Footnotes
1 Ms. Beardsley also requested records of travel arrangements, hotel and rental car reservations, receipts, and "[a]ll records relating to the mission. " Although the Governor's Office originally failed to notify Ms. Beardsley that no records responsive to this portion of her request were maintained by that office, Deputy General Counsel Michael T. Alexander advised her that "additional documents" could be obtained from Secretary Robbie Rudolph, Finance and Administration Cabinet. The record reflects that Ms. Beardsley subsequently submitted open records requests to the Finance Cabinet and the Economic Development Cabinet and that a coordinated response for those agencies, as well as the Governor's Office, was prepared by Catherine Staib, Assistant General Counsel for the Economic Development Cabinet. The record further reflects that Ms. Beardsley was afforded access to all requested records with the exception of itineraries per KRS 61.878(1)(d), (i), and (j). Ms. Staib noted that "production of documents in which an itinerary is an ancillary feature should not be construed as a waiver of the itinerary exemption to the Open Records Act. " Because The Courier-Journal was ultimately afforded access to the remaining records identified in Ms. Beardsley's request, we find that any issues relating to those records, aside from those that are identical to the primary issue on appeal, were mooted by their disclosure. Pursuant to 40 KAR 1:030 Section 6, we do not address these issues.
2 Interchangeably referred to throughout the opinion as "appointment calendars, " "appointment schedules," and "private itinerary. "
3 The term "calendar" is defined as "a schedule of events," The American Heritage College Dictionary, 204 (4th Ed., 2002), and as "a list or schedule," Webster's New World Dictionary, 200 (2d Ed., 1974).
4 The term "schedule" is defined as "a list of times of departures and arrivals; a timetable, " The American Heritage College Dictionary, 1240 (4th Ed., 2002), and as "a list of times; timetable, " Webster's New World Dictionary, 1272 (2d Ed., 1974).
5 The term "itinerary" is defined as "an account or record of a journey, " The American Heritage College Dictionary, 738 (4th Ed., 2002), and as "a detailed plan or outline for a proposed journey, " Webster's New World Dictionary, 750 (2d Ed., 1974).
6 Acknowledging that the Court of Appeals applied a balancing of interests analysis, previously reserved for denials based on KRS 61.878(1)(a), to a denial based on KRS 61.878(1)(i) and (j) in Courier-Journal v. Jones, above, in 00-ORD-139, this office noted that the analysis "is a double-edged sword" which ultimately operated to preclude public access in Jones. Nevertheless, we observed:
Clearly, the public agency itself can engage in its own balancing of interests relative to a decision whether to affirmatively exercise its option to deny access to a preliminary record or release the otherwise exempt preliminary record. In an early open records opinion, the Attorney General recognized that "[t]he custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided by KRS 61.878(1)[(k) and (l)] (public records or information the disclosure of which is prohibited by federal law or regulation, and public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly)." OAG 79-275, p. 1. This opinion was premised on the notion that "[t]he exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody." OAG 79-275, p. 3. [Footnote omitted.] In support of this position, we noted that the Open Records Act provides no penalty for releasing exempted documents.
Although we made no reference to the legislative impetus for enactment of an Open Records Act in OAG 79-275, it is clear that the primary impetus was the recognized need to insure public agency accountability by establishing a statutory right of access to public records, and not to thwart access by requiring public agencies to withhold exempt records which they were otherwise inclined to release. In enacting this statutory scheme, the legislature did not intend to tighten an agency's grip on public records, thereby making it more difficult to gain access. Broader rights of access, rather than more restrictive rights of access, are the goal, and the means of achieving this goal is the fullest responsible disclosure.
00-ORD-139, p. 11, 12. Given the discretionary nature of the exemptions, at least one former governor elected to release his schedule/calendar/ itinerary.