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 Justice and Public Safety Cabinet properly relied on KRS 61.878(1)(i) and (j) in denying Charles B. Wells' March 21, 2005, request for "[a] copy of a letter/memorandum dated on or about August 3, 2004, from Roger Wright to Christina Norris in regard to ongoing litigation involving Dr. Crall, an employee or former employee of the Kentucky Corrections Department." For the reasons that follow, we find that the Cabinet's reliance on KRS 61.878(1)(i) and (j) was misplaced. Having reviewed the disputed record, under authority of KRS 61.880(2)(c), 1 we find that it does not constitute correspondence with a private individual or a preliminary memorandum in which opinions are expressed or policies formulated or recommended.
By letter dated March 22, 2005, Justice and Public Safety General Counsel Luke Morgan advised Mr. Wells:
The correspondence which you seek was mailed by Roger Wright, an attorney employed by the Justice Cabinet, to opposing counsel in a civil action in which Mr. Wright represented Dr. Crall in his individual capacity (as authorized by KRS 12.213). It is our position that this correspondence constitutes correspondence with private individuals and is therefore exempt from disclosure pursuant to KRS 61.878(1)(i). Further, this correspondence is maintained in an attorney case file originating from the representation of a public employee in their individual capacity. It is therefore further our position that this correspondence is not a public record within the meaning of KRS 61.870(2).
Additionally, Mr. Wright expresses preliminary recommendations and other opinions in this correspondence, which is another basis this request must be denied. KRS 61.878(1)(j).
Shortly thereafter, Mr. Wells initiated this open records appeal. On March 28, 2005, this office issued written notification of Mr. Wells' appeal to the Cabinet indicating that "[p]ursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal." The Cabinet elected not to do so. Unable to resolve the issue on appeal based on this limited record, the Office of the Attorney General subsequently requested a copy of the disputed letter pursuant to KRS 61.880(2)(c) to facilitate our review. Based on that review, we find that the August 3 letter from Mr. Wright to Ms. Norris does not qualify for exclusion under either of the cited exceptions.
To begin, Mr. Wright's letter to Ms. Norris is a public record within the meaning of KRS 61.870(2). That statute defines the term "public record as:
[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
To insure that "the citizens' right to be informed as to what their government is doing," 2 is not devalued by the exclusion of items, this term is expansively defined, extending to "all documentation regardless of physical form or characteristics" that is "prepared, owned, used, in the possession of or retained by a public agency. " The letter at issue in this appeal was prepared by a public agency employee, Mr. Wright, and is possessed and retained by a public agency, the Justice and Public Safety Cabinet. It is clearly a public record, notwithstanding the fact that it is "maintained in an attorney case file originating from the representation of a public employee in their individual capacity. " 3
Whether the letter is an open record, or otherwise qualifies for exclusion under one or more of the exceptions to the Open Records Act, is a closer question. The Cabinet asserts that the letter "constitutes correspondence with private individuals and is therefore exempt from disclosure pursuant to KRS 61.878(1)(i)." That exception authorizes public agency's to withhold "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. "
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. There we held that a letter generated by a federal agency in response to a federal employee's request for post employment advice could not properly be characterized as "correspondence with private individuals" since it was "solicited by a federal employee in anticipation of his resignation from public employment" and promptly transmitted to a prospective employer, thus demonstrating that the "candor of the correspondents was [not] dependent upon assurances of confidentiality. " 00-ORD-168, p. 3. Clearly, the exception does not extend to "all writings from individuals to a government agency . . ." or from the agency to private individuals. 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; 02-ORD-86 (holding that the Purchase Area Development District improperly relied on KRS 61.878(1)(i) in denying request for applications for the purchase of conservation easements); 04-ORD-192 (holding that City of Danville improperly withheld petition signed by individual's supporting the sale of city owned property as correspondence with a private individual and finding that the petition was a formal written document requesting a right or a benefit from a group in authority upon which that authority was expected to rely in taking action relative to the sale of the property).
Here, as in the line of decisions cited above, the disputed letter does not qualify for exclusion as correspondence with a private individual. It was apparently solicited by an attorney seeking clarification of the Justice and Public Safety Cabinet's position on a particular issue. 4 Nothing in the record on appeal suggests that the candor of the correspondents was dependent upon assurances of confidentiality. Because it cannot properly be characterized as correspondence with a private individual, it became an open record upon issuance regardless of whether the litigation to which it tangentially related had been concluded. Accord, OAG 80-450; OAG 83-134; 00-ORD-172; 04-ORD-192.
Assuming for the sake of argument that the letter could be characterized as correspondence with a private individual, we find that it gives notice of the Cabinet's stated position on the question raised and therefore does not qualify for exclusion under KRS 61.878(1)(i). As noted, KRS 61.878(1)(i) authorizes nondisclosure of "correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " (Emphasis added.) Mr. Wright's letter to Ms. Norris consists of an unambiguous statement of the Cabinet's position on the issue she raises, and cannot be considered nonfinal. Under no construction of KRS 61.878(1)(i) can we affirm the Cabinet's reliance on this exception.
Further, we reject the Cabinet's claim that the letter constitutes a preliminary recommendation and that it contains "other opinions" within the meaning of KRS 61.878(1)(j). That exception authorizes nondisclosure of "[p]reliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]" 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.
00-ORD-168, p. 7.
That purpose is not served by the nondisclosure of a document containing a statement of current agency policy and practice. Our review of the disputed letter does not confirm the presence of either recommendations or opinions of any kind, but instead, and as noted, an unequivocal statement of the Cabinet's position relative to the issue into which Ms. Norris inquired. For this reason, it cannot be characterized as a predicisional document that enjoys protection unless and until it is adopted by the Cabinet as part of the final action to which it relates. 5 Instead, it was a nonexempt public record upon issuance and cannot be withheld under KRS 61.878(1)(j).
Guided by the cited authorities, and the statement of legislative intent codified at KRS 61.871 mandating that the exceptions provided for by KRS 61.878 must be strictly construed, we find that the Justice and Public Safety Cabinet's reliance on KRS 61.878(1)(i) and (j) as the basis for denying Mr. Wells' request was misplaced, and that the Cabinet violated the Open Records Act in withholding the requested letter.
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.
Charles B. WellsExecutive DirectorKASE/AFT-KentuckyP.O. Box 4110Frankfort, KY 40604-4110
Luke MorganGeneral CounselJustice and Public Safety CabinetBush Building, Second Floor403 Wapping StreetFrankfort, KY 40601-2638
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
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2 Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994).
3 March 22, 2005, response of the Justice and Public Safety Cabinet to Mr. Wells' open records request.
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4 KRS 61.880(2)(c) precludes greater specificity in the description of the contents of the disputed letter. We do, however, note that the issue is one of general application and not one solely related to the litigation involving the Cabinet's and Ms. Norris' clients.
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5 The courts and this office have long recognized that predicisional documents are shielded from disclosure pursuant to KRS 61.878(1)(j) unless and until they are adopted by the agency as part of the final action to which they relate. See, e.g., City of Louisville v. Courier-Journal, Ky. App., 637 S.W.2d 658 (1982); University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992); 00-ORD-125 and authorities cited therein.
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