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 Office of the Governor violated the Kentucky Open Records Act in denying the request of Lexington Herald-Leader political reporter Ryan Alessi for "access to or copies of" certain e-mails exchanged between Daniel H. Groves and Keith A. Hall between January 4, 2004, and September 30, 2004. With respect to the sentence of the single responsive e-mail that is properly characterized as a preliminary recommendation or opinion, the Office of the Governor properly relied upon KRS 61.878(1)(j) in denying Mr. Alessi's request. In contrast, the remainder of the e-mail is devoid of opinion, recommendation, or policy; the e-mail likewise constitutes neither a draft or note, nor correspondence with a private individual. With the noted exception, the Office of the Governor therefore violated the Open Records Act by withholding the e-mail in its entirety on the bases of KRS 61.878(1)(i) and (j).
More specifically, Mr. Alessi requested access to or copies of the following:
All e-mails, whether contained in an inbox, sent-mail box, archived sent-mail box, archived folder or deleted items box or any other computerized file or server, exchanged between Daniel H. Groves and Keith A. Hall between Jan. 4, 2004 and Sept. 30, 2004 regarding or mentioning any of the following: Robbie Rudolph, LaJuana Wilcher, Gene Strong, Jim Host, James Holsinger, Steve Pence and/or Clay Bailey.
By letter dated August 1, 2005, Michael G. Adams, Deputy General Counsel, advised Mr. Alessi that the Office of the Governor possesses only one e-mail that is responsive to his request. As observed by Mr. Adams, the responsive e-mail is "from Keith A. Hall to Daniel H. Groves, dated March 8, 2004, and mentions Secretary Jim Host." However, this mention "appears in the context of a purported conveyance by Mr. Hall of Secretary Host's opinion about a nonmerit state employee's job performance. This nonmerit state employee is not one of the officials listed in your request." Citing KRS 61.878(1)(i) and (j), as well as decisions of this office construing those provisions, the Office of the Governor further noted that the e-mail at issue "falls squarely within the protection of these exemptions, and accordingly is excepted from disclosure. " Arguing that the e-mail "might be hearsay, but hearsay isn't covered" by the Open Records Act, Mr. Alessi initiated this appeal on August 2, 2005.
Upon receiving notification of Mr. Alessi's appeal from this office, Mr. Adams responded on behalf of the Office of the Governor. According to Mr. Adams, a "diligent search revealed only one record which appeared to be responsive to Mr. Alessi's request," a copy of which Mr. Adams enclosed so this office could perform an in camera review. 1 Having reiterated his earlier arguments, Mr. Adams asserts that Mr. Alessi "completely ignores the explicitly stated legal basis for this agency's denial" and "misstates that basis as a 'hearsay' exception and attacks that straw man." In no way did Mr. Adam's response invoke Kentucky Rules of Evidence 802. To the contrary, his attempt to describe the content of the e-mail "was intended to comply with
Edmondson v. Alig, Ky., 926 S.W.2d 856 (1996)." Quoting the language of KRS 61.878(1)(i) and (j), Mr. Adams argues that the content of the responsive e-mail "is the sort of preliminary intraoffice discussion which [this office] has repeatedly recognized as excepted from disclosure. " In support of this position, Mr. Adams relies upon OAG 91-23 and OAG 88-85. As further observed by Mr. Adams, there is "nothing to suggest that the e-mail was ever incorporated or adopted in any final action of this agency; indeed, neither of the individuals involved in the exchange were decision-makers with authority to take action regarding the nonmerit employee's performance." Standing alone, this is not controlling.
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 Company, 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 (1994); See also
The Courier-Journal and Louisville Times Company 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). Our office is at liberty to neither add nor subtract "from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. In the absence of a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Company v. Thacker, Ky. App., 661 S.W.2d 477, 480 (1983); See also
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
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 final action.
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982);
Kentucky State Bd. of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983); 2
University of Kentucky v. The Courier-Journal and Louisville Times Company, Ky., 830 S.W.3d 373 (1992). 3 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. 4
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. 5 However, resolution of the instant appeal turns not on whether the e-mail has been adopted as a basis for final action by the Office of the Governor, but whether the e-mail can properly be characterized as a draft, note, correspondence with a private individual, preliminary recommendation or preliminary memorandum in which opinions are expressed. To the extent a preliminary recommendation or opinion is expressed, the content of the e-mail can properly be withheld; the remainder can best be described as statements of fact or "conversational-type" communications that do not fall within the parameters of KRS 61.878(1)(i) or (j). 05-ORD-144, p. 8.
In an early open records decision, the Attorney General observed:
Not every paper in the office 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 and notes. Yellow pads can 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 employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2; 04-ORD-030. A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 6 97-ORD-183, p. 4. A "note," on the other hand, is defined as a "brief record, esp. one written down to aid the memory." Id. at 951; 97-ORD-183, p. 4. In the alternative, a "note" is "created as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." 97-ORD-183, p. 4 (citations omitted).
As evidenced by the foregoing, no credible argument can be made that the subject e-mail is a "draft" or "note" according to the "common and approved uses" of those terms. In other words, an e-mail of the type at issue "does not represent a tentative version, sketch, or outline of a formal and final written product such as the draft reports [at issue in 94-ORD-38, 93-ORD-67, or OAG 89-34.]" 97-ORD-183, p. 4. Likewise, the e-mail is not a note in the relevant sense. "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. Id.; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting."). Compare 00-ORD-132 (handwritten note concerning a telephone conversation exempt per KRS 61.878(1)(i)); 99-ORD-206 (general counsel's handwritten notes from meetings exempt per KRS 61.878(1)(i)). Given this determination, the question becomes whether the e-mail is properly characterized as "correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " 7 In short, this characterization is equally inapplicable.
In 00-ORD-168, the Attorney General 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. " Id., p. 2. Clearly, this exception does not extend to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6. In OAG 90-7, this office concluded that the Finance and Administration Cabinet had improperly relied upon KRS 61.878(1)(i) , then codified as KRS 61.878(1)(g), in denying the public access to correspondence between the Cabinet and a private contractor regarding its contract with the Cabinet. Id., p. 4. Characterizing the document in question as "a letter of a contractor under a public contract involving administration of that contract," this office concluded that "such correspondence may not be properly characterized as 'correspondence with a private individual' within the meaning of KRS 61.878(1)[(i)]." Id. OAG 90-7 has been repeatedly affirmed over time.
In 99-ORD-220, for instance, the Attorney General held that the Kentucky Racing Commission had improperly relied upon KRS 61.878(1)(i) in denying a request for copies of applications for "'2000 racing licenses and 2000 racing dates for all Kentucky racetracks . . . includ[ing] all financial filings that the commission requires accompany these requests[,]'" modifying OAG 90-142 to the extent it held that disclosure is mandatory upon request only after final governmental action. Id., p. 1. In relevant part, this office engaged in the following analysis:
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 . . . . Simpl[y] 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.
Id., p. 5 (emphasis added). Here, as in 99-ORD-220, the record in dispute cannot properly be characterized as correspondence with a private individual, a preliminary draft, or a note. Contrary to Mr. Adams' assertion, the final action inquiry is thus moot rather than controlling. 04-ORD-125, pp. 9-10. See 05-ORD-210 (finding that subject e-mail was not a draft, note, or correspondence with a private individual as required to trigger application of KRS 61.878(1)(i), but a communication from one official to another seeking confirmation that an existing policy was being properly implemented that was more analogous to the records at issue in 05-ORD-144 and 05-ORD-072; nor did it contain recommendations, opinions, or policy formulation as required for KRS 61.878(1)(j) to apply). Accordingly, the remaining issue is whether the e-mail is accurately described as a preliminary recommendation or memorandum within the meaning of KRS 61.878(1)(j).
In 05-ORD-144, 8 the Attorney General was asked to decide whether the Office of the Governor had properly relied upon KRS 61.878(1)(i) and (j) in partially denying a request 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." Of particular relevance here, this office engaged in the following analysis relative to messages characterized as "Conversational e-mails" :
These non-exempt e-mails include conversational-type communications such as jokes, poems, lunch inquiries, and commentary regarding 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[ed] 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) .
Among those e-mails to which this analysis also applied were those described as communications from agency heads to Mr. Disponett for assistance in filling vacancies at a particular agency, "non-policy fact-based communications" such as a work order for office repairs, 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. 05-ORD-144, p. 9.
In our view, the e-mail directed from Keith A. Hall to Daniel H. Groves of the Governor's Office on March 8, 2004, concerning a specified individual whose name appears in the subject heading, falls within this category. In other words, the e-mail consists primarily of facts or the exchange of information as opposed to being subjective in nature like recommendations or opinions; the same is true of the attached message sent by Cissy Musselman to Mr. Hall earlier the same morning to which Mr. Hall refers in his e-mail. That being the case, the e-mails do not fall within the parameters of KRS 61.878(1)(j); the Office of the Governor must make the record available for inspection and/or copying. However, the fifth sentence of the former e-mail, which purportedly conveys the opinion of Mr. Host relative to the performance of a nonmerit employee, as correctly observed by Mr. Adams, is precisely the type of communication to which the protection of KRS 61.878(1)(j) applies and may be redacted from the copy provided. Because the e-mail was apparently never adopted as a basis for final action, this portion of the e-mail retains preliminary status; the Office of the Governor did not violate the Open Records Act in denying Mr. Alessi's request on the basis of KRS 61.878(1)(j) to this limited extent. 9
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.
Ryan AlessiPolitical ReporterLexington Herald-Leader612A Shelby StreetFrankfort, KY 40601
Michael G. AdamsDeputy General CounselOffice of the Governor700 Capitol Avenue, Suite 100Frankfort, KY 40601
Footnotes
Footnotes
1 To facilitate our review of appeals filed pursuant to the Open Records Act, KRS 61.880(2)(c) and 40 KAR 1:030(3) vest this office with the authority to inspect the records at issue. In relevant part, KRS 61.880(2)(c) provides:
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.
In a similar vein, 40 KAR 1:030(3) provides:
KRS 61.880 authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
In 96-ORD-206, the Attorney General "recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted." Id., p. 5. Here, this office had not invoked KRS 61.880(2)(c); a public agency arguably waives any arguments by disclosing the record(s) prior to the Attorney General invoking KRS 61.880(2)(c), although this office does not so interpret the disclosure in this instance.
2 In Kentucky State 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. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status.
Id. at 956.
3 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.
4 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.
5 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. Since this office issued 93-ORD-125, the Attorney General has applied this reasoning in various contexts. See 96-ORD-38; 96-ORD-121; 96-ORD-122; 98-ORD-70; 00-ORD-46; 00-ORD-139. In 00-ORD-195, the Attorney General quotes the analysis of 93-ORD-125, as adopted in 00-ORD-139, at length. Although the reports in the aforementioned decisions were final as to the private consultant, the record on appeal in each case, 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. Such is the case here. However, the relevant inquiry on the facts presented is whether the record is a draft, note, or correspondence with a private individual, or a preliminary recommendation or memorandum in which opinions are expressed; if not, the record does not qualify for protection regardless of whether final action has been taken.
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. In short, this line of decisions is a logical extension of those holding that internal records in which opinions are expressed or policies formulated or recommended qualify for exemption until those records are adopted as a basis for final action.
6 Absent 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).
7 "Correspondence" is defined as "Communication by the exchange of letters." The American Heritage College Dictionary 321 (4th ed. 2002).
8 05-ORD-144 has been appealed to Franklin Circuit Court, Civil Action Number 05-CI-1015.
9 As noted in both 05-ORD-210 and 05-ORD-144, this office is not equipped to conclusively determine whether an agency has adopted the record at issue or the opinions and recommendations contained therein as a basis for final action.