Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, 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 denying The Lexington Herald-Leader political reporter Ryan Alessi's July 20, 2005 request for certain 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.
Specifically, Mr. Alessi requested access to or copies of the following records:
All e-mails contained in any archived e-mail files, sent-mail file, inbox or other e-mail file on Kathy Harman's computer or in Ms. Harman's possession dated between Jan. 24, 2005 and March 11, 2005 regarding personnel policies, personnel discussions with cabinet secretaries and/or e-mails that mention Berry Hill Mansion.
All e-mails contained in any archived e-mail files, sent-mail file, inbox or other e-mail file on Basil Turbyfill's computer or in Mr. Turbyfill's possession dated between Jan. 24, 2005 and March 11, 2005 regarding personnel policies, personnel discussions with cabinet secretaries and/or e-mails that mention Berry Hill Mansion.
Responding on behalf of the Office of the Governor, Michael G, Adams, Deputy General Counsel, citing KRS 61.878(1)(i) and (j), denied access to records responsive to the request, advising:
We possess two records responsive to your request. The first is an e-mail from Kathy Harman to Pam Ritter at the Governor's Office for Local Development ("GOLD") and to Basil Turbyfill, dated January 26, 2005, in reply to an e-mail from Ms. Ritter to Ms. Harman. The e-mails content relates to personnel policy development and contains opinions, observations and recommendations toward that end.
The second is an e-mail from Cordell Lawrence at GOLD to Mr. Turbyfill, and to Dan Waits and Ms. Ritter at GOLD. Its content also relates to personnel policy development and similarly is deliberative in nature.
We believe each of these records is excepted from disclosure under the Open Records Act.
Shortly thereafter, Mr. Alessi initiated the instant appeal on behalf of the Herald-Leader.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Adams provided this office with a response to the issues raised in the appeal. Reiterating the Office of the Governor's initial response, he further argued:
The basis for Mr. Alessi's appeal is that the emails "that relate to 'personnel policy development' that contain opinions, observations and recommendations . . . . [are] precisely what I asked for." However, our office did not withhold these emails as nonresponsive to Mr. Alessi's request; rather, we withheld them as exempt from disclosure under the plain language of the Open Records Act and the long-settled precedent of the Attorney General.
To facilitate this office's review of this appeal, the Office of the Governor provided us with a copy of the e-mails in question for an in camera review. The documents were not disclosed to other parties and have since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030, Section 3. We have examined the e-mails in dispute and, although we cannot disclose the contents, we can summarize them generally. The first e-mail' s content contains recommendations and opinions relating to personnel policy development. The second e-mail' s content is a communication from one official to another seeking confirmation that an existing policy is being properly implemented.
We are asked to determine whether the Office of the Governor's denial of access to the requested e-mails violated the Open Records Act. For the reasons that follow, we affirm only in part the Office of the Governor's denial of Mr. Alessi's request.
KRS 61.878(1)(i) and (j), authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
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. 00-ORD-139; 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.
In City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)] protect preliminary documents from public disclosure if they are not adopted as the basis of final agency action. This is the seminal decision on the preliminary documents exceptions. It is only where preliminary records are adopted as the basis of the agency's final action taken, the purpose for which KRS 61.878(1)(i) and (j) exist is no longer served, and the preliminary records forfeit their preliminary characterization and must be disclosed. 93-ORD-125.
Addressing the first e-mail, the Office of the Governor explained the first e-mail related to "personnel policy development and contains opinions, observations, and recommendations toward that end." Our in camera review of this e-mail substantiated the agency's characterization of the document. It contained recommendations and opinions relating to personnel policy development.
Records containing preliminary recommendation, opinions, or policy formulations that do not reflect final action are preliminary in nature and exempt from disclosure, under KRS 61.878(1)(j). As such, this e-mail retains its preliminary character until such time as the recommendations and suggestions are adopted and made a part of final agency action. Accordingly, we conclude the Office of the Governor properly denied access to the first e-mail on the basis of KRS 61.878(1)(j). As noted in 05-ORD-144, 1 p. 7, this office is not equipped on the limited record before us to make a determination if any of the recommendations or suggestions set forth in the January 26, 2005 e-mail was adopted as part of final agency action. If any were adopted as part of final agency action, it must be made available for inspection.
Addressing the second e-mail, the Office of the Governor explained the second e-mail "also relates to personnel policy development and similarly is deliberative in nature." Citing KRS 61.878(1)(i) and (j), the agency argued that this e-mail fell within the protection of these exemptions and they should not be disclosed. We disagree.
In 05-ORD-144, we held that conversational-type e-mail communications such as statements containing factual information, but which are devoid of recommendations, opinions, or policy formulations, are not exempt under KRS 61.878(1)(i) and (j). Accord, 05-ORD-072 (holding that an agency letter containing a statement of current agency policy and practice, and devoid of opinion, recommendations, or policy formulation, is subject to disclosure) .
Our review of this e-mail revealed that it is a communication from one official to another seeking confirmation that an existing policy is being properly implemented. It is devoid of recommendation, opinion, or policy formulation. It is more analogous to the records involved 05-ORD-072 and 05-ORD-144. Because it does not contain any subjective expressions of opinion, recommendation or formulate any policy, it would not qualify for exemption from disclosure under KRS 61.878(1)(j).
Moreover, it is not a draft, note, or correspondence with private individuals, qualifying for exemption from disclosure under KRS 61.878(1)(i). In 97-ORD-183, this office dissected the language of this exemption:
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . ." Id. at 804. [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9. (KRS 61.878(2)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] 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.
97-ORD-183, p. 4. In that decision, the Attorney General held that a printout of the Treasurer's unclaimed and abandoned property list could not be withheld under authority of KRS 61.878(1)(i). See also, 98-ORD-11 (daily roster used by payroll clerk to prepare employee paychecks not exempt pursuant to KRS 61.878(1)(i)).
Applying the rule of strict construction codified at KRS 61.871, and bearing in mind that the Open Records Act "exhibits a bias favoring disclosure, " Board of Examiners v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992), we conclude that this e-mail also does not qualify for exclusion under KRS 61.878(1)(i). It is clear that this e-mail does not consist of "correspondence with private individuals" inasmuch as this part of KRS 61.878(1)(i) "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.
Addressing other relevant parts of KRS 61.878(1)(i), we find: The record is not a draft. It does not represent a tentative version, sketch, or outline of a formal and final written product. Compare 00-ORD-195 (incomplete faculty salary survey data, that was subject to revision, properly withheld under KRS 61.878(1)(i)). Nor is it a note. It is not an aid to memory nor does it consist of random notations, or written or shorthand notes created as a basis for a fuller statement. Compare, 99-ORD-206 (general counsel's handwritten notes from meetings exempt per KRS 61.878(1)(i) ); 00-ORD-132 (handwritten note of telephone conversation exempt per KRS 61.878(1)(i)). As noted above, it is a communication from one official to another seeking confirmation that an existing policy is being properly implemented. As such, it does not qualify for exemption from disclosure under KRS 61.878(1)(i). Accordingly, we find that the Office of the Governor improperly relied on KRS 61.878(1)(i) and (j) in denying Mr. Alessi access to this e-mail and it should be made available for his inspection.
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 05-ORD-144 has been appealed to the Franklin Circuit Court, Civil Action Number 05-CI-1015.