Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor properly relied on KRS 61.878(1)(i) and (j) in partially denying Courier-Journal reporter Tom Loftus's April 4, 2005 request for certain correspondence and e-mail records retained in the Office of the Governor. For the reasons that follow, we affirm, only in part, the denial of the request for the records.
In his request, Mr. Loftus asked for copies of the following records:
. . . Specifically, I am asking for copies of any and all correspondence and electronic mails sent to volunteer Dave Disponett, or sent out of the Capitol by volunteer Dave Disponett since Dec. 9, 2003.
By letter dated April 8, 2005, Michael T. Alexander, Deputy General Counsel, Office of the Governor, responded to Mr. Loftus's request advising in relevant part:
Although your request is technically deficient, because you have failed to identify with some reasonable degree of specificity the documents and/or files you wish to review, we have nevertheless determined, in the spirit of cooperation, to accommodate your request.
Without waiving any objections contained in the Open Records Act, Mr. Alexander agreed to immediately release certain emails to Mr. Loftus and to provide him with a supplemental response on or before April 13, 2005. He explained that Mr. Disponett does not have a computer assigned to him 1 or use a privately owned computer, but acknowledged he has an e-mail account within the Governor's Office where e-mail messages are received. He noted that it was his understanding that Mr. Disponett never responded to any messages.
On April 13, 2005, Mr. Alexander provided Mr. Loftus with the supplemental response, releasing additional emails and advising that certain of the emails responsive to the request were exempt from disclosure under KRS 61.878(1)(i) and (j). In his response, he explained in part:
Clearly, documents that are preliminary in nature and contain preliminary recommendations, observations and opinions fall within these exemptions. Certain emails that you requested are exempt from disclosure under this exception [KRS 61.878(1)(i)] contain preliminary recommendations, observations and opinions.
?
In addition to the preliminary documents, some of these exempt documents are also correspondence Mr. Disponett received from private individuals, none of which relays final agency action or relates in any way to the administration of a government contract.
?
The Attorney General opinions that construe this exemption [KRS 61.878(1)(i)] have uniformly refuse to permit inspection of correspondence to and from private individuals provided that it does not convey final agency action or relate to the administration of a government contract.
?
The emails received by Mr. Disponett do not relate to the administration of a government contract. None contain correspondence which is intended to give notice of final action of a public agency and for that matter none were "incorporated into or made a part of the . . . final decision on the matter." OAG 87-24.
Therefore, the documents that you requested that fall within these exemptions have not been made available for inspection
Following the partial denial of Mr. Loftus's request, attorney Jon L. Fleischaker initiated the instant appeal on behalf of his client, The Courier-Journal, arguing that the Office of the Governor's reliance upon KRS 61.878(1)(i) and (j) was misplaced. Having considered the arguments of The Courier-Journal and the Office of the Governor, in supplemental correspondence provided to this office, we affirm, only in part, the decision of the Governor's Office to withhold the 154 emails that are the subject of this appeal.
In discussing the Attorney General's responsibilities in an open records appeal involving the application of KRS 61.878(1)(i) and (j), this office in 03-ORD-139, at pages 5-6, explained:
In discharging the statutory duties assigned to him 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 by the Kentucky Supreme Court's holding in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
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" ). Further, we recognize, as in Beckham, that "with 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 these principles, as well as an evolving body of case law, 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. City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 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., Ky., 830 S.W.2d 373 (1992)?
. . . This office has frequently noted that KRS 61.878(1)(i) and (j) are 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. See, e.g., 94-ORD-118 and 93-ORD-125.
We have examined each of the 154 emails 2 implicated by Mr. Loftus' request, and produced for in camera inspection by the Office of the Governor pursuant to KRS 61.880(2)(c) , through the prism of the Kentucky Open Records Act and not in light of subsequent disclosures through other legal mechanisms. The emails fall within nine general categories. The two largest categories are those categories pertaining to requests for Mr. Disponett's assistance in obtaining state employment. An analysis of the propriety of the Governor's Office's denial of each of these categories of emails follows:
Requests to Mr. Disponett for assistance in obtaining an appointment or a particular position of employment
These emails solicit Mr. Disponett's assistance in obtaining an appointment, a particular position, retention of employment, or reinstatement to a position. They can best be described as preliminary in character inasmuch as they constitute the applicant's initial steps in seeking a position in state government. Some include the requester's opinion as to why he or she is qualified for a particular position and include a resume. As such we find the Governor's office could properly deny access to them under KRS 61.878(1)(j) if they were not adopted by the respective agencies as part of the final hiring/ retention/ reinstatement decision. On the topic of access to applications for employment and related documentation, this office has observed:
With specific reference to application materials submitted by unsuccessful applicants, this office has consistently affirmed agency denial of access on the basis of KRS 61.878(1)(a). For example, in OAG 90-113, 95-ORD-38, 96-ORD-1, 97-ORD-72, 00-ORD-90 and 02-ORD-221, the Attorney General held that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Synthesizing the rationale underlying these decisions, in 02-ORD-221 we observed:
02-ORD-221, p. 2. . . .
Against this negligible privacy interest we weigh the competing public interest in disclosure of the application materials of unsuccessful applicants. That interest has also, in general, been characterized as nominal at best. Although the public has a significant interest in the competence of the applicants public agencies hire and the agencies' adherence to proper hiring practices, as reflected in the successful applicants' application materials, the public's interest in disclosure of the application materials of unsuccessful applicants is reduced insofar as the latter application materials are "unnecessary for the public to evaluate the competence of people who were appointed" and "may be misleading because the appointments were made on the basis of both the applications and the interviews." Core v. United State Postal Service, 730 F.2d 946, 949 (4th Cir. 1984) cited in 00-ORD-90, p. 6. . . .
The cited authorities also recognize the applicability of KRS 61.878(1)(i) and (j) to application materials submitted by unsuccessful applicants for public employment.
Although a number of these emails were no doubt adopted as the basis of final action relative to appointments, hirings, retentions, and/or reinstatements and therefore forfeited their preliminary characterization, this office is not equipped to make such a determination on the limited record on appeal. While we acknowledge that our decision shifts responsibility back to the Office of the Governor, thereby "letting the fox decide the best way to guard the henhouse," 3 we are unable to trace each request for appointment, hiring, retention, or reinstatement to its conclusion, or determine what role the emails played in the final decision to hire, retain, or reinstate, and know of no viable alternative. If any of these emails culminated in the decision to appoint, hire, retain, or reinstate, the Office of the Governor must make them available for inspection.
Requests to Mr. Disponett for assistance in getting other individuals jobs or positions of employment
These emails consist of requests recommending individuals for state employment and often include resumes, as well as letters of recommendation and letters of introduction, and largely reflect an opinion about a particular individual. In 98-ORD-155, this office distinguished between letters of recommendation adopted as part of the basis for the agency's final action, which forfeited their preliminary characterization, and letters of recommendation that were not adopted as the basis for final action, which retained their preliminary characterization. In 95-ORD-35 we held that the University of Kentucky improperly withheld that portion of the Chancellor's letter to the President containing his recommendations relative to a faculty member's promotion. In that case the recommendation had been approved by the President and then transmitted to the Board of Trustees, which took final action approving the promotion. We found that Chancellor's recommendation was adopted by the Board of Trustees in its final action approving the promotion, and thus lost its preliminary character.
As noted above, this office is not equipped to trace to its conclusion each of the letters of recommendations submitted to Mr. Disponett in the hope that he would exercise his influence to insure the hiring or promotion of the person recommended. Again, and in the absence of a viable alternative, we leave it to the Office of the Governor to ascertain which of these letters yielded the desired result, to wit, the hiring or promotion of the recommended individual, and to disclose those letters to Mr. Loftus.
Conversational emails
These non-exempt emails include conversational-type communications such as jokes, poems, lunch inquiries, and commentary containing information, but are devoid of recommendation, opinions, or policy formulations. They are not exempt under KRS 61.878(1)(i) and (j) and are subject to disclosure because they constitute neither drafts, notes, nor correspondence with private individuals nor subjective expressions of opinion or recommendation. Accord, 97-ORD-183 (holding that a list of unclaimed property owners is not a subjective expression of opinion but an objective report of facts and must be disclosed); 00-ORD-178 (holding that inmate resident record card reflecting the amount of good time award consists of immutable mathematical calculations, and no recommendations, opinions or policy formulations, and must be disclosed to inmate); 05-ORD-072 (holding that document containing a statement of current agency policy and practice, and devoid of opinion, recommendations, or policy formulation, is subject to disclosure) .
Request to Mr. Disponett from agency heads for assistance in filling positions
These emails consist of communications from agency heads to Mr. Disponett for assistance in filling vacancies in a particular agency. They are in the nature of a factual communication, rather than an expression of opinion or recommendation and are not exempt under KRS 61.878(1)(i) and (j). In support, we refer the parties to the analysis set forth immediately above.
Communications containing facts and factual narratives
This category of emails consists of non-policy fact- based communications. Examples include a work order for repairs to an office, a thank-you note, a request for review and signature, an update on the status of a project, a thought for the day, and a vacation announcement. Consistent with the analysis set forth above, relative to conversational emails, we find that these records must be disclosed.
Constituent-type request records
This broad category of emails consists of communications to Mr. Disponett from individuals seeking assistance and some form of governmental action on the correspondent's behalf.
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 . . ." 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); 05-ORD-072 (holding that letter from private attorney seeking clarification of agency position on an issue did not qualify for exclusion).
Applying this line of reasoning, we find that the disputed emails do not qualify for exclusion under KRS 61.878(1)(i) or (j) because they were submitted with the expectation of agency action and nothing in the record on appeal suggests that the candor of the correspondents was dependent upon assurances of confidentiality. We do, however, note that some of the emails contain details of personal illness or financial difficulties along with the correspondents' home addresses, telephone numbers, and other personal identifiers. With regard to this information, we find that although the Office of the Governor did not invoke the privacy exception, KRS 61.878(1)(a), the correspondents' privacy interest in the intimate details of their personal lives is superior to the public's interest in disclosure and that these identifiers can be redacted per KRS 61.878(4). Board of Examiners, above.
Legislation update records
These emails track the progress of certain legislation and express opinions on the viability of a number of proposed bills. We find they could properly withheld from disclosure under KRS 61.878(1)(j) as a preliminary record in which opinions are expressed and policies formulated or recommended.
Meeting schedules, travel schedules and details, luncheon detail records
These emails contain travel related communications and other scheduling matters. This office, and the courts, have recognized that a public official's appointment schedule and appointment calendars may be excluded from public inspection pursuant to KRS 61.878(1)(i). See 93-ORD-25; OAG 78-626;
Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6 (1995). In Courier-Journal v. Jones, the Court of Appeals concluded that an appointment schedule is "nothing more than a draft of what may or may never take place; a notation for inter or intra office use . . . ," and thus exempt pursuant to KRS 61.878(1)(i). In OAG 78-626, this office held that the Mayor of Louisville's appointment calendar could properly be withheld from disclosure under authority of what is now codified as KRS 61.878(1)(i). In OAG 84-342, we held that a public official's calendar and his secretary's calendar were exempt from disclosure under authority of KRS 61.878(1)(a), (i) and (j) and OAG 78-626. In 05-ORD-018, 4 pages 5 and 6, we stated:
We see no meaningful distinction between a calendar, 5 a schedule, 6 and an itinerary, 7 and these terms are used interchangeably throughout Jones and other supporting authorities.
Based on the foregoing authorities, we find that the Office of the Governor properly denied access to these records under authority of KRS 61.878(1)(i) and (j), as construed in Courier-Journal v. Jones, and 05-ORD-018. In so holding, we note that some of these emails relate to travel logistics, and expenses associated therewith, and do not implicate the deliberative process which the court sought to protect in Jones, above. Nor do some of these emails qualify as a draft or notation for inter or intra office use within the meaning of KRS 61.878(1)(i), as construed in Jones, above. As above, we leave it to the Office of the Governor to insure the release of those emails falling into the latter category.
Drafts of appointment announcements, news releases, etc.
These emails, such as a draft of a news release and a draft of an announcement of appointment, could properly be withheld from disclosure under KRS 61.878(1)(i). In general, they represent "a tentative version, sketch, or outline of a formal and final written product" similar to the draft reports dealt with in OAG 89-34, 93-ORD-125, or 94-ORD-38. 97-ORD-183, p. 5. As such, they are subject to revision and correction and do not constitute the final version of the document which was ultimately released. Accord, 05-ORD-048 (holding that Kentucky High School Athletic Survey results submitted for review, revision, and comment, were preliminary drafts within the meaning of KRS 61.878(1)(i). As a "preliminary version" of the final document which they supported, those emails were properly withheld under the cited authority. See also, 04-ORD-168.
Summary
Resolution of the issues presented in this appeal turns on the application of existing legal precedent to the records in dispute and is confined to an analysis under the Open Records Act. Our decision reflects a reasonable compromise between the need for governmental confidentiality and the public's right to know about the operations of the Office of the Governor as reflected in emails directed to that office.
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.
Footnotes
Footnotes
1 Mr. Alexander explained that Mr. Disponett's emails are received on the state computer assigned to Jessica Masters. Moreover, although Mr. Disponett was not a paid employee of the state, he was vested with the mantle of governmental authority by virtue of the role he was assigned, the duties he performed, and the "trappings" of office which surrounded him.
2 Although, as noted above, Mr. Disponett's position as a volunteer is not a "state employee" position, he has been provided with an office in the State Capitol, has an e-mail account within the Governor's Office, and access to a state owned computer to receive emails. In 99-ORD-112, we opined that "review of records created on public equipment enables the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes." 99-ORD-112, p. 1. This decision echoes a line of Attorney General's opinions recognizing that the use of public equipment at public expense does not, in general, implicate KRS 61.878(1)(a).
3 John Cheves, "Fletcher Aides Leave Plentiful Trail of E-mail, " Lexington Herald-Leader, June 5, 2005 quoting Mr. Fleischaker.
4 05-ORD-018 has been appealed to the Franklin Circuit Court. Courier-Journal v. Office of the Governor, Franklin Circuit Court, Division I, Civil Action Number 05-CI-273.
5 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).
6 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).
7 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).