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 High School Athletic Association violated the Kentucky Open Records Act in denying the request of Courier-Journal reporter C. Ray Hall for copies of "All documents, correspondence and responses related to the KHSAA's survey of non-public high schools last spring" on the basis of KRS 61.878(1)(i) and (j). Because the requested records are preliminary in nature, and are properly characterized as drafts which have not been adopted by the KHSAA as a basis for final action at this time, the KHSAA properly relied upon KRS 61.878(1)(i) in denying Mr. Hall's request. Accordingly, analysis of the remaining arguments advanced by the parties in support of their respective positions is unnecessary.
By letter dated January 6, 2005, Mr. Hall directed his request to KHSAA Commissioner Brigid DeVries. As clarified by Mr. Hall: "That's the survey in which the KHSAA sought, among other things, information on financial aid dispensed to varsity athletes compared to financial aid dispensed to the student body as a whole." On February 7, 2005, Mr. Hall submitted his request to Theodore R. Martin, KHSAA legal counsel, to whom he was referred, advising him that Commissioner DeVries had indicated "even though four or five of the 46 non-public schools had yet to respond, she was willing to share the available information" with The Courier-Journal. In closing, Mr. Hall observed that his request was not for "a summary of the information for all Kentucky schools [], but a school-by-school response from the 46 non-public schools, as close to the example as possible."
In a response dated February 10, 2005, Mr. Martin denied the The Courier Journal's request on behalf of the KHSAA. "Without conceding the issue of whether the KHSAA is subject to the provisions of the [Open Records Act] ," 1 the KHSAA responded, in relevant part, as follows:
. . . KRS 61.878 excludes certain public records from inspection under the KORA. Two different exceptions apply in this case. First, KRS 61.878(1)(i) excludes "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " Second, KRS 61.878(1)(j) excludes "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
In this case, the KHSAA Commissioner, Brigid L. DeVries, has undertaken a study of the financial aid given to students at KHSAA member schools. The study, as proposed and conducted, is a long-term project. The first step in the process is to obtain basic information concerning financial aid and general enrollment for students in private high schools. Further steps will then be taken to gather information as to all KHSAA member schools concerning financial aid. At this point, the KHSAA has not even received the surveys from all private high schools. Accordingly, only preliminary data has been received; no final report has been issued by the KHSAA. This gathering, compilation, and analysis of preliminary data is related to the process of developing and creating recommendations, opinions and/or policies - it does not signify final action by the KHSAA. Thus, the requested records fall within the exceptions at KRS 61.878(1)(i) and (j). See 00-ORD-195 (Oct. 10, 2000).
Because this position is consistent with governing precedent, the denial by the KHSAA of The Courier-Journal's request is affirmed.
In a letter dated February 25, 2005, Jon L. Fleischaker, legal counsel, appealed this denial on behalf of The Courier-Journal. Given the rule of strict construction applied in interpreting the exceptions to the Open Records Act codified at KRS 61.878, which is mandated by KRS 61.871, Mr. Fleischaker correctly argues that both the courts and the Attorney General have narrowly construed KRS 61.878(1)(i) and (j). To begin, records must be "preliminary" in order to qualify under either of these exceptions. "Here, the records are final survey responses prepared by KHSAA member schools and transmitted to KHSAA which contain factual statistical information regarding enrollment and financial aid. " According to Mr. Fleischaker, there "is no suggestion that the survey responses are subject to revision. " In his view, Mr. Martin's characterization of the records as "preliminary" is a "stretch that does not comport" with this mandate of strict construction.
Although the record reflects that the KHSAA distributed a survey to member schools, many of which responded in writing, "Mr. Martin argues that the responses constitute the first step in a long-term study and are 'preliminary data' because no final report has been issued by KHSAA." However, the fact that the requested records exist at a point in time prior to issuance of the final report does not render those documents preliminary in Mr. Fleischaker's estimation. "If the fact of chronological succession alone sufficed for this purpose, then virtually all public records could somehow be labeled 'preliminary'." Citing 04-ORD-244, Mr. Fleischaker argues that the survey responses are neither drafts nor notes, nor correspondence with private individuals. Rather, KRS 61.878(1)(i) "is reserved for a narrow category of public records that reflects letters exchanged by individual private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. 00-ORD-168." According to The Courier-Journal, this is not such a case.
Nor are the requested records memoranda or recommendations containing opinions or policy formulations subject to the exception contained at KRS 61.878(1)(j). That exception applies to "an aid to memory or . . . the basis for a fuller statement, as, for example, written or shorthand notes," or "a tentative version, sketch, or outline of a formal and final written product such as a "draft report" and is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. 97-ORD-183. Here, the records simply contain factual data, not opinions or recommendations. Likewise, the requested records are not subject to revision or change, but instead contain factual data that may be considered by the KHSAA in its study of financial aid in non-public schools.
Although Mr. Fleischaker is correct in his recitation of the applicable law, this office respectfully disagrees with his interpretation based on the following authorities. 2
Upon receiving notification of Mr. Fleischaker's appeal, Mr. Martin elaborated upon the KHSAA's position. Citing 00-ORD-139 and applicable case law, 3 Mr. Martin correctly observes that 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. " Having reiterated his earlier synopsis of the process, Mr. Martin further explains that "after complete preliminary data is received and reviewed, additional data and input may be requested." Contrary to The Courier-Journal's assertion, "this gathering, compilation, and analysis of preliminary data is related to the process of developing and creating recommendations, opinions and/or policies regarding the financial aid given to student athletes - it does not signify final action by the KHSAA." In the KHSAA's view, there "are no meaningful distinctions between the preliminary reports obtained by the KHSAA and the [Job Inventory Form] Study and related reports in 00-ORD-195 to merit different treatment by the Attorney General." 4 We agree.
In discharging the statutory duties mandated by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring 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," as well as the Kentucky Supreme Court's pronouncement that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Nevertheless, this office is fully cognizant that:
Despite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records 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)-(j)]. From these 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 . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; See also
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). As in any case involving statutory interpretation, our duty is to "ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
Guided by the foregoing principles, as well as an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit having exempt status only upon being adopted by the agency as a basis for its final action. City of Louisville, supra; Kentucky State Bd. of Medical Licensure, supra; 5 University of Kentucky, supra. 6 00-ORD-194; 00-ORD-139; 98-ORD-140; 94-ORD-118; 94-ORD-38; 93-ORD-125. Each of the cited decisions is premised upon the following notion:
Predecisional and investigative documents which are incorporated by the agency into its final action forfeit their preliminary status and are therefore subject to inspection. . . . Records which are of a purely internal preliminary investigatory nature are exempt. . . . Records which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records.
97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11; See 04-ORD-162. 7
With respect to the rationale underlying KRS 61.878(1)(i) and (j), the Attorney General has recognized:
KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies.
93-ORD-125, p. 4. As evidenced by a review of the relevant authorities, this rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. Accordingly, this logic has been extended to reports and analyses prepared by outside agencies, as well as consultants, on behalf of a public agency, on numerous occasions. In 93-ORD-125, the Attorney General summarized the decisions to this effect, affirming a denial by the Transit Authority of River City of a request for a report prepared by Coopers & Lybrand evaluating the performance of Yellow Enterprise under its agreement with TARC, as a preliminary record upon which the TARC had not taken final action. As observed by this office:
[I]n OAG 82-450, we held that a "Development Potential Analysis" prepared for Jefferson County by the Real Estate Research Corporation was exempt from public inspection under KRS 61.878(1)(j). At page 2 of that opinion we held:
Similarly, in OAG 82-337, we held that a completed report of SRI International of Melo Park, California, on plans for future economic development in Louisville was excluded from public inspection because it contained opinion and recommendations which the public agency could accept or disregard in taking final action. In OAG 85-96, we reached the same conclusion, holding that a feasibility report on the construction of a high-rise office building prepared by Coldwell Realty under a contract with the City of Louisville could properly be withheld pursuant to KRS 61.878(1)(j) since it was preliminary in nature, "setting forth opinions and recommendations for review and consideration by the city." OAG 85-96, at p. 3. Finally, in OAG 88-60, we held that a public official properly denied a request to inspect a draft audit prepared by the E.P.A. and sent to the City of Owensboro, pursuant to KRS 61.878(1)(i) and (j), insofar as the audit was a preliminary report containing opinions and observations.
Addressing the issue presented, this office engaged in the following analysis:
Contrary to the [Appellant's] assertion that the courts and this office have applied these exceptions only to internal preliminary investigative materials, this Office has recognized that the rationale underlying these exceptions is equally compelling regardless of whether the communications are within an agency or between agencies. While we acknowledge that the exceptions to the Open Records Law must be strictly construed to facilitate the widest possible dissemination of public records, we believe that [the appellant's] construction of KRS 61.878(1)[(i) and (j)] is unduly narrow, and inconsistent with a long line of opinions issued by this office.
We also reject [the appellant's] assertion that the record cannot be characterized as "preliminary" because "there is no indication that Coopers & Lybrand intends to do any further work on the report. . . ." In OAG 90-97, we observed that the fact that the recommendations made, or memoranda prepared, are final as to the person making or preparing them is irrelevant. Most recommendations and memoranda are final in the sense that the person making or preparing them does not intend to make or prepare subsequent recommendations or memoranda. "The word 'preliminary' as used in KRS 61.878(1)[(j)] obviously refers to recommendations made [and memoranda prepared] by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation [or memorandum] is the first, second or last recommendation [or memorandum] if the state agency has not yet taken final action. " OAG 90-97, at p. 4. See also, OAG 82-450, at p. 2.
93-ORD-125, pp. 4-5. Because "no final report has been issued by the KHSAA," the data in question is properly characterized as "preliminary." 8
In support of this position, the KHSAA clarifies that the study is a "long-term project," the first step of which is to gather "basic information concerning financial aid and general enrollment for students in private high schools. " At this point, the KHSAA has not received surveys from all of the private high schools nor have all of the submitted surveys been completed. Upon receiving completed preliminary data, the KHSAA may request additional data and input. Absent evidence to the contrary, this office has no reason to question the truthfulness of this factual summary. Because the KHSAA is still in the process of collecting and compiling data which is subject to revision, it necessarily follows that the KHSAA has not yet reached the stage at which recommendations will be made, opinions expressed, and policies formulated or recommended regarding the preliminary data. As in 00-ORD-195, this office is therefore not persuaded that the materials submitted by the participating high schools qualify for exclusion by virtue of KRS 61.878(1)(j). Accordingly, the question becomes whether the KHSAA is authorized to withhold the materials at issue pursuant to KRS 61.878(1)(i). As the materials are properly characterized as a preliminary draft, the KHSAA did not violate the Open Records Act in denying The Courier-Journal's request on this basis.
A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002); 97-ORD-183, p. 4; 04-ORD-125. 9 A "note," on the other hand, is a "brief record, esp. one written down to aid the memory. " Id. at 951; 97-ORD-183, p. 4; 04-ORD-125. In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to 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 apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. It stands to reason that information submitted in response to surveys does not constitute 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. 97-ORD-183, p. 4; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"); 04-ORD-125. Likewise, such materials are not accurately described as "correspondence with private individuals, . . ." in the relevant sense. 10 Instead, the materials submitted by private high schools to the KHSAA are, by definition, "a tentative version, sketch, or outline of a formal and final written product such as the drafts dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38" in this context. 97-ORD-183, p. 4. As evidenced by the record, the data contained in the materials was submitted by the schools for review and comment. Upon inspection by KHSAA officials, omissions were discovered necessitating further input. Such incomplete data obviously could not serve as a basis for final action by the KHSAA, and the KHSAA has expressly denied taking any final action at this point. On appeal, The Courier-Journal does not challenge the facts presented, disagreeing instead with the application of governing precedent to those facts. While The Courier-Journal is correct in asserting that chronological sequence is not the determining factor, and that KRS 61.878(1)(j) is not entirely applicable, in our view the KHSAA member survey responses qualify as "drafts." Accordingly, the KHSAA properly relied upon KRS 61.878(1)(i) in denying The Courier-Journal's request.
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 61.882. 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.
Jon FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Brigid DeVriesCommissionerKHSAA2280 Executive DriveLexington, KY 40505
Theodore R. MartinGreenebaum, Doll & McDonald PLLC300 West Vine Street, Suite 1100Lexington, KY 40507-1665
Footnotes
Footnotes
1 Although the KHSAA does not concede that it is a public agency for purposes of the Open Records Act, the Attorney General has consistently held otherwise as the KHSAA acknowledges on appeal. 04-ORD-244; 98-OMD-94; OAG 78-191. Pursuant to KRS 61.880(5)(b), a decision issued by the Attorney General "shall have the force and effect of law" if an appeal is not filed within the thirty day time limit. Our office has no record of the KHSAA appealing prior decisions to this effect. Accordingly, the KHSAA is legally bound to comply with the Act, and further elaboration regarding its status is unwarranted.
2 In the alternative, Mr. Fleischaker argues that the requested records fall squarely within the parameters of KRS 61.878(2), which provides that no exemption "in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person." Although the position of the KHSAA is persuasive on the facts presented in our view, further consideration is unwarranted given our determination as to the applicability of KRS 61.878(1)(i) and (j).
3 City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.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., 830 S.W.2d 373 (1992).
4 More specifically, the KHSAA observes the following relative to 00-ORD-195:
. . . Under [the Open Records Act] , an Eastern Progress staff writer had requested that Eastern Kentucky University [] produce "a copy of the study done by Buck Consultants concerning classified employees." EKU hired a consultant to conduct a long-term study to help EKU determine whether current compensation of its employees [is] below relevant market rates and explore a new compensation classification system. The consultant, as part of the study, obtained specific job information, i.e., factual data, from all EKU staff employees [JIF Study]. Although EKU had received the consultant's preliminary report based on the JIF Study, it contained a number of errors. In addition, the JIF Study had only taken into account broad data, not specific factors. EKU and the consultant were working together to create more data reports to address specific concerns.
The Attorney General found that the JIF [S]tudy and related reports were not subject to disclosure under KRS 61.878(1)(i). Although the Attorney General found that the law favors disclosure, [he] concluded that the General Assembly has determined that the public's right to know must yield to the government's need for confidentiality. After noting that the protections of KRS 61.878(1)(i) extend to reports and analyses prepared by outside consultants, the Attorney General held that the data which was still being collected and undergoing revision [was] covered by KRS 61.878(1)(i). While the materials were not correspondence with private individuals or notes, the materials "constitute[d] 'a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125 and 94-ORD-38.'" 00-ORD-195, p. 8, [quoting 97-ORD-183].
5 In Kentucky Bd. of Medical Licensure, the Court emphasized:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville [as is the case with the survey responses at issue]. However, once such notes or recommendations are adopted by the [KHSAA] as part of its action, the preliminary characterization is lost, as is the exempt status.
Id. at 956. "Unless so adopted and made a part of the [KHSAA's] final action, such documents shall remain excluded under Subsections [(i)] and [(j)] of the Act." Id. at 956-957.
6 See 04-ORD-187, pp. 21-23, for a detailed discussion of the cited cases which is equally instructive here. "In the intervening years," this principle was the common thread among the decisions by the Attorney General addressing this issue in various contexts. See OAG 89-69; 88-25; OAG 84-98; OAG 83-405. Id., p. 22.
7 In 01-ORD-83, the Attorney General observed that the terms "incorporate" and "adopt" are not synonymous or interchangeable" in rejecting the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action of the ultimate decision maker, modifying prior decisions to the extent necessary to be consistent with this view. Id., pp. 13-14; 04-ORD-187; 04-ORD-162.
8 Since this office issued 93-ORD-125, the Attorney General has applied this reasoning to the report prepared, and recommendations submitted by, a private attorney retained by the City of Louisville for the purpose of evaluating the Louisville Policemen's Retirement Fund (96-ORD-38); a study prepared by an outside consultant hired by the Hardin County Schools to examine the organizational structure and compensation system of administrators, classified staff, and teachers (96-ORD-121; 96-ORD-122); an analysis prepared by a private corporation under contract with the Transportation Cabinet evaluating alternatives for the design of a connector road (98-ORD-70); a presidential performance review prepared by an outside consultant for Kentucky State University (00-ORD-46); and a draft report relating to proposed rate increases by Sanitation District No. 1 prepared by Burton & Associates (00-ORD-139). In 00-ORD-195, upon which the KHSAA correctly relies, the Attorney General quotes the analysis of 93-ORD-125, as adopted in 00-ORD-139, at length. Although each of the aforementioned reports were final as to the private consultant, the record in each appeal, with the exception of 00-ORD-46 (report destroyed prior to the commencement of the appeal), was devoid of evidence that the reports had been a basis of final action taken by the agency. Barring an amendment to KRS 61.878(1)(j) or a published opinion by either the Court of Appeals or Supreme Court, the Attorney General found no reason to depart from the view that KRS 61.878(1)(j) authorizes nondisclosure of preliminary recommendations or preliminary memoranda in which opinions are expressed or policies are formulated or recommended until those reports are adopted as a basis for final action, notwithstanding the fact that the records are prepared for the agency by outside agencies or private consultants. 00-ORD-139, p. 9. See also OAG 90-97; OAG 89-34; OAG 88-60; OAG 88-24. Of particular relevance here, this line of decisions is a logical extension of those holding that internal records of the type requested qualify for exemption. In other words, a commonality among the cited authorities is the fundamental premise that the records are otherwise protected.
9 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).
10 "Correspondence" is defined as "Communication by the exchange of letters." The American Heritage College Dictionary 321 (4th ed. 2002).