Request By:
Joe Biesk
Room 243, Capitol Building
700 Capitol Avenue
Frankfort, KY 40601James Deckard
General Counsel
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601David E. Fleenor
Deputy General Counsel
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601
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 violated the Open Records Act in denying the request of Associated Press reporter Joe Biesk for "access to, or copies of, 'Daily Media Calls' compiled by Gov. Ernie Fletcher's administration since he took office in December 2003. Included in this request are records of any and all files or documents retained by the administration pertaining to members of the media. " For the reasons that follow, we affirm, only in part, the agency's denial of the request for the requested records.
Responding to Mr. Biesk's request, David E. Fleenor, Deputy General Counsel, on behalf of the Office of the Governor, advised:
As was previously been communicated to your office in a letter dated May 11, 2005, the Governor's Communications Office receives e-mails each day from the various PIO's concerning any open records requests and media inquiries received by their respective offices. These e-mails are nothing more than random records which are not maintained in any particular order or file. They are forwarded to the Governor's Communications Office as standard operating procedure so that this Office is properly informed and can respond to the many inquiries received on a daily basis. The procedure appears to have been followed since approximately May 2005. These "Daily Media Calls" are not maintained or retained in any sort of unitary file, although we have determined that some of these daily communications still exist in the e-mail files of those members of the Governor's Communications Office tasked with creating the compilation for a particular day.
Mr. Fleenor further advised Mr. Biesk that the documents he requested, the "Daily Media Calls," which were the compilation of the e-mails forwarded to the Governor's Communications Office, were exempt from disclosure under KRS 61.878(1)(i) and (j). In support of this position, he explained in part:
We previously stated that we believe the underlying e-mails that constitute the "Daily Media Call" to be preliminary reports or recommendations, and thus, exempt from disclosure under KRS 61.878(1)(i) and (j). . . .
?
We see nothing in the fact that the underlying e-mails are compiled into a single e-mail that would change their character as a preliminary report. They are still documents that are preliminary in nature, contain opinion and do not embody final agency action.
Addressing that portion of Mr. Biesk's request for any "files or documents retained by the administration pertaining to members of the media, " Mr. Fleenor advised that the Office of the Governor does not maintain any files and/or logs on any members of the Capitol press corps.
As a result of the Office of the Governor's response, Mr. Biesk initiated the instant appeal.
After receipt of Notification of the appeal, Mr. Fleenor provided this office with a response to the issues raised in the appeal. Expanding on the Office of the Governor's original response, he explained:
The Office of the Governor does have documents responsive to request No. 1 ["Daily Media Calls" compiled by Governor Ernie Fletcher's administration since he took office in December 2003]. The Governor's Communications Office receives e-mails each day from the various Public Information Officers of individual cabinets and agencies. These e-mails outline any open records requests and media inquiries received by their respective offices. Contained within these e-mails are opinions concerning various media inquiries and preliminary analysis as to what the media may ultimately report and the tone and tenor of the interview. Further, these e-mails may outline legal thinking for responding to an open records request. As they concern prospective stories, these e-mails do not reflect final agency action.
As an alternative basis for denying Mr. Biesk's request, the Office of the Governor cited KRS 61.878(1)(c)(1) , arguing:
Contained with the Daily Media Calls is information on stories specific reporters are developing, some of which are developed a period of days, if not weeks. Disclosure of these documents would allow a competing media entity to see which stories are being developed, and thus gain a competitive advantage.
To facilitate our review of this appeal, and under authority of KRS 61.880(2)(c), we requested that the Office of the Governor provide this office with access to the records withheld for in camera inspection.
We are asked to determine whether the Office of the Governor's denial of Mr. Biesk's request for access to these records, under authority of KRS 61.878(1)(i) and (j), constituted a violation of the Open Records Act. For the reasons that follow, we affirm, only in part, the agency's denial of the request for the requested records.
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.
Generally speaking, these exceptions "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 discussion of matters of concern to the agency." 05-ORD-210, p. 3, 4. In interpreting KRS 61.878(1)(i) and (j), the Attorney General has consistently applied the rule of strict construction codified at KRS 61.871, 1 and borne 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). For example, in 97-ORD-183, this office dissected the language of KRS 61.878(1)(i), opining:
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(1)(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.
In 05-ORD-210, we applied this reasoning to an open records dispute involving access to an email that constituted neither a draft, a note, nor correspondence with a private individual, insofar as the latter phrase has been interpreted by this office to extend only to "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. We concluded that the disputed email was not shielded from disclosure by operation of KRS 61.878(1)(i).
Likewise, this office has consistently rejected agency invocation of KRS 61.878(1)(j) where the disputed records are devoid of opinion, recommendations, or policy formulation. See, e.g., 05-ORD-210, citing 05-ORD-072. As noted above, the purposes underlying this exception have been widely discussed and turn on the recognition that:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there will 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. This purpose is not served by the nondisclosure of records containing neither opinion, recommendation, nor policy formulation, and this office has so concluded in a series of open records appeals involving access to public employee email. See, 05-ORD-210; 05-ORD-221; compare, 05-ORD-280; 06-ORD-021; 06-ORD-180.
We have conducted an in camera inspection of the Daily Media Reports in dispute. Our review of the disputed records does not support the Office of the Governor's reliance on KRS 61.878(1)(i) and (j) to support a blanket denial of the Daily Media Reports, insofar as the reports cannot be properly characterized as drafts, notes, or correspondence with private individuals. Nor can they be properly characterized as subjective expressions of opinion, recommendations, or policy formulations. Although we cannot disclose the contents of the reports, we can summarize them generally. The majority of the media contacts listed in Daily Media Reports advised the Governor's Communications Office that a particular reporter or member of the media had called about a particular subject matter, such as an incident, meeting, event, investigation, setting up an interview, background information, or the status of a particular matter. Many entries reported media questions and agency answers given. Some entries listed the members of the media in attendance at a meeting or news conference. Other entries advised of open records requests and the subject matter of the requests. Some entries advised of Cabinet or agency briefings to the media on a particular subject matter or as to an upcoming meeting, appearances of the Governor and other officials, or news releases. Other entries advised that the media had informed the Cabinet or agency as to when a particular story would run or be aired. Other topical areas included within the Daily Media Reports were: Media Briefings; Open Records Requests; Daily Notes; News Releases; Events; Outreach; etc.
Accordingly, we conclude that the Office of the Governor's reliance upon KRS 61.878(1)(i) and (j) for a blanket nondisclosure of the Daily Media Reports is misplaced. In general, the content of the reports constitute an objective reporting of facts and must be made available for Mr. Biesk's inspection. 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) .
However, portions of some of the reports contain information which the Office of the Governor properly characterized in its supplemental response as "opinions concerning various media inquiries and preliminary analysis as to what the media may ultimately report and the tone and tenor of the interview or "may outline legal thinking for responding to an open records request." KRS 61.878(4) provides
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
This provision applies to all public records in which exempt and nonexempt information is commingled. Accordingly, the Office of the Governor, pursuant to KRS 61.878(4), may redact information from the Daily Media Reports that reflect a subjective expression of opinion, such as described in its response, and make the remainder of the Reports available for Mr. Biesk's inspection. The Office of the Governor must specifically identify those portions of the Reports withheld and explain how each portion qualifies for exclusion pursuant to KRS 61.878(1)(i) and (j) or other applicable exceptions to disclosure in KRS 61.878(1), and articulate the basis for denial in terms of the requirements of that exception. KRS 61.880(1). 01-ORD-17.
We further find that the Office of the Governor's reliance upon KRS 61.878(1)(c)(1) as a basis of denial is misplaced. KRS 61.878(1)(c)1. authorizes public agencies to withhold:
[R]ecords confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records[.]
In construing this provision, we have repeatedly observed:
[T]he burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. That exception, as noted above, "is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage." 97-ORD-66, p. 10 (emphasis added). It is, in general, inapplicable to records generated by or for a public agency. "The exemptions protection simply does not extend to the agency's own records."
01-ORD-87, p. 7, cited in 01-ORD-143 and 01-ORD-153. In sum, we have held that:
[T]o qualify for exclusion under KRS 61.878(1)(c)1., a public record must be:
See also 96-ORD-135; 97-ORD-66; 97-ORD-132; 01-ORD-143. [Unless] the disputed records . . . satisfy the first of these three requirements, KRS 61.878(1)(c)1. is inapposite, and the [agency's] reliance upon it is misplaced.
The short answer to this issue is that no records of the media were confidentially disclosed to or required to be disclosed to the Office of the Governor, thus, the Daily Media Reports created by the Office of the Governor do not qualify for exemption from disclosure under KRS 61.878(1)(c)(1).
Finally, in response to Mr. Biesk's request for "records of any and all files or documents retained by the administration pertaining to members of the media, " the Office of the Governor advised that it did not maintain any files and/or logs on any members of the Capitol press corps. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no error in this regard
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 KRS 61.871 thus provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is 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, even though such examination may cause inconvenience or embarrassment to public officials or others.