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 Transportation Cabinet violated the Kentucky Open Records Act in denying the request submitted by Amanda York in her capacity as Frankfort Bureau Chief of The Kentucky Post for "the daily schedule for former Deputy Secretary of Transportation Dick Murgatroyd through 2004," to include "meetings, appointments, speaking engagements and other activities" where Mr. Murgatroyd acted in his official capacity, on the basis of KRS 61.878(1)(i). Because the only existing record which is responsive to Ms. York's request is the "personal calendar" of Mr. Murgatroyd, and the Kentucky Court of Appeals conclusively established that records of this type are exempt from inspection or disclosure pursuant to KRS 61.878(1)(i) and (j) in
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6 (1995), the Cabinet properly denied Ms. York's request. To hold otherwise would contravene this governing precedent.
By letter dated May 23, 2005, Ms. York requested access to Mr. Murgatroyd's daily schedule, emphasizing that disclosure of the information contained in such records "is in the public interest and would primarily benefit the general public." In a timely written response, Dan G. Druen, Jr., Commissioner, Department of Administrative Services and Custodian of Records, denied Mr. York's request. According to Mr. Druen, "the only schedule in existence would be the personal calendar of Mr. Murgatroyd." In the Cabinet's view, an "appointment calendar is not an accurate log of what actually occurred, and is subject to many changes." Relying upon KRS 61.878(1)(i), Mr. Druen therefore contends that the calendar at issue is properly characterized as a "work paper or preliminary draft which is not subject to review."
Respectfully disagreeing with Mr. Druen's characterization of an appointment calendar as preliminary, Ms. York initiated this appeal on June 6, 2005. In The Post's view, such calendars, though subject to change, "provide an explanation to taxpayers of how public servants such as Mr. Murgatroyd spend their time, or plan to spend their time on a particular day." As an official whose salary is paid by taxpayers, Mr. Murgatroyd's "work" for the Cabinet "should be accounted for on a scheduling document." In addition, The Post argues that the requested records are from 2004 and therefore "do not qualify as a 'preliminary draft'" as a record is preliminary "only if it is subject to change. " Emphasizing that The Post requested documentation of Mr. Murgatroyd's daily schedule rather than his personal calendar, Ms. York advises this office that The Post "would accept another public record that is an accurate reflection of Mr. Murgatroyd's final schedule" if there is a credible dispute as to whether the calendar is preliminary. If the daily schedule is the sole responsive record, The Post contends that it is not preliminary "and therefore is public."
Upon receiving notification of The Post's appeal from this office, J. Todd Shipp, Assistant General Counsel, Office of Legal Services, supplemented the Cabinet's response. Correctly observing that Jones is dispositive of this matter, Mr. Shipp argues "there is no distinction between a preliminary schedule [and] a final schedule." To the contrary, it is "a working document that is an individual's attempt to bring some semblance of order to his working day." In conclusion, Mr. Shipp cites 05-ORD-018, 93-ORD-36, 93-ORD-25, and OAG 78-626 as further support for the Cabinet's position. Because this appeal presents no reason to depart from prior decisions of this office, nor is the Attorney General empowered to depart from binding authority such as Jones, this office affirms the Cabinet's denial in its entirety.
In Jones, the Court of Appeals analyzed the propriety of then Governor Brereton Jones' denial of requests by various members of the press for access to his daily appointment ledgers, referred to interchangeably throughout the opinion as "appointment calendars, " "appointment schedules," and "private itinerary, " on the basis of KRS 61.878(1)(i) and (j). Resolving the issue in favor of Governor Jones, the Court identified KRS 61.878(1)(i) as "the crux of this case," and
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994) as "the latest expression" by the Supreme Court as to that provision. Observing that the concept of governmental confidentiality "has not been totally diluted by the Open Records Act," the Court of Appeals quoted the following excerpt 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 p. 8, quoting Beckham.
In the same vein, the Court of Appeals also referenced OAG 78-626, in which this office affirmed the denial by the City of Louisville of a request by one of the same appellants for the Mayor's appointment calendar based upon the following rationale:
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 or notes. KRS 61.878(1)[(i)]. Yellow pads can sometimes 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 of which his office will probably want to keep on file for sometime, we nevertheless believe that it is nothing more than a work paper, a preliminary draft, notebook or memorandum.
Jones, supra, at p. 8 (emphasis added). Ultimately concluding that the Governor's "appointment schedule" was exempt, the Court reasoned that the schedule is "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 p. 10.
In so holding, the Court of Appeals relied heavily upon
Times Mirror Company v. Superior Court of Sacramento, 53 Cal. 3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240 (1991), a case that "emanates from a sister state's court of last resort," Jones, supra, at p. 7, which, like Jones, resulted from the denial by the Governor of requests by members of the press for access to his appointment calendar. Weighing the interest of the Governor in protecting the essentially deliberative nature of his calendar against the considerable public interest in determining whether the "state's highest elected officer was attending diligently to the public business, " the court concluded that the Governor's interest in nondisclosure "'clearly outweigh [ed]' the public interest in disclosure. " Id. at pp. 8-9, quoting Times Mirror. 1 Application of this test to the facts presented dictates the same outcome in our view. 2
Of particular relevance here, the Kentucky Court of Appeals also quoted with approval the following excerpt from Times Mirror addressing the issue of 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.
Jones, supra, at p. 9, quoting Times Mirror at 283 Cal.Rptr. at 905, 813 P.2d at 252.
Recognizing that access "to a broad array of opinions and the freedom to seek all points of view, to exchange views, to exchange ideas, and to discuss policies in confidence, are essential to effective governance in a representative democracy," the Times Mirror court was persuaded that the public interest served by not disclosing the Governor's appointment calendars and schedules "clearly and substantially outweighs the public interest in their disclosure. " Id., quoting Times Mirror at 907, 813 P.2d at 254. Such is the case here. Although neither party has cited, nor has our research revealed, any authority resolving the issue presented in precisely this context, the Deputy Secretary of the Transportation Cabinet possesses sufficient authority to develop and implement policy; the same logic therefore necessarily applies. In other words, the reasoning of Jones is controlling.
As noted, the implicit attempt by The Post to distinguish Jones is premised upon the fact that the requested schedule documents past activities and is therefore not preliminary or subject to change. However, the Court of Appeals expressly rejected this argument in Jones, and this office is not at liberty to depart from governing precedent. Although there is a "considerable" public interest in ascertaining whether a high ranking official is "attending diligently to the public business, " the Court of Appeals has determined that disclosure of such records could also devalue or eliminate altogether a particular viewpoint from consideration, and even routine meetings might be inhibited if the participants were subjected to heightened scrutiny by the press. Accordingly, the public interest implicated must yield to the interest in governmental confidentiality reflected by KRS 61.878(1)(i) and (j). While that interest may be less compelling when the official activities recorded on a schedule, itinerary, or calendar have already occurred, the Court of Appeals has adopted the reasoning of Times Mirror as to this issue, concluding that "the risks of disclosure . . . apply . . . regardless of whether . . . [those actions] are past or future." Jones, supra, at pp. 8-9. Resolution of this appeal turns on judicial precedent dating back to 1995, and the corollary recognition by this office 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, the Cabinet properly denied The Post's request for Mr. Murgatroyd's schedule.
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.
Amanda YorkBureau ChiefThe Kentucky PostRoom 242Press Row, Capitol Building700 Capitol AvenueFrankfort, KY 40601
Doug HoganKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
Dan G. Druen, CommissionerDepartment of Administrative ServicesKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
J. Todd ShippAssistant General CounselOffice of Legal ServicesKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
Footnotes
Footnotes
1 "The public's interest extends not only to the individual they elect as Governor, but to the individuals their Governor selects as advisors." Jones, supra, at p. 9. A logical inference is that the same is true of the opposing interest in protecting the deliberative nature of their calendars; Mr. Murgatroyd falls within the category of officials to whom this protection extends.
2 Most recently, this office reached the same conclusion in 05-ORD-018, which is currently on appeal to circuit court. Franklin Circuit Court, Division I, Civil Action No. 05-CI-273.