Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, 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 the disposition of Kentucky Commission on Human Rights Managing Attorney Morgan G. Ransdell's October 20, 2006, request to inspect and copy:
. Any and all reports, recommendations, determinations, resolutions, and/or any record of a final action of the Blue Ribbon Panel convened by the Governor by Executive Order 2005-219 to study the Kentucky Commission on Human Rights; [and]
. Any and all records . . . that were considered by the Blue Ribbon Panel at the meeting conducted on 5/31/06, or that were issued by or to the panel, or the members of the panel, with regard to any portion of the subject matter of the 5/31/06 meeting[.] 1
For the reasons that follow, we find that the Governor's disposition of the Commission's request was procedurally deficient but substantively correct.
Having received no response to the Commission's request, Mr. Ransdell initiated this appeal on October 27, 2006, asserting that "on May 31, 2006, the members of the Governor's Blue Ribbon Panel adopted and signed a report regarding the Panel's investigation of the Kentucky Commission on Human Rights," but noting that the report had not been made public. Continuing, Mr. Ransdell observed:
[T]he manner in which this report is being handled has frustrated the worthy efforts of the Blue Ribbon Panel members. The ongoing effort to conceal the Blue Ribbon Panel report contravenes the fundamental purposes of the Kentucky Open Records Act and the Kentucky Open Meetings Act.
In closing, Mr. Ransdell urged this office to "examine the issues . . . and direct the Governor's Office to allow the inspection of the requested documents."
In supplemental correspondence addressed to the Commission, a copy of which was forwarded to this office, Deputy General Counsel for the Office of the Governor, Michael T. Alexander, expanded upon his office's original response, dated October 26, 2006. In the October 26 letter, which apparently crossed the Commission's letter of appeal in the mail, Mr. Alexander indicated that the Office of the Governor would:
Commence inspection and provide to [the Commission] or make available for inspection and copying, within reasonable time, any such records which are not exempt from disclosure under KRS 61.878. It is anticipated that the records and/or documents will be provided to [the Commission] or made available for inspection and copying on or before Friday, November 3, 2006, at 4:00 p.m.
In its supplemental response, the Office of the Governor provided the Commission with the draft minutes of the May 31, 2006, meeting, 2 but denied the Commission access to the draft final report on the basis of KRS 61.878(1)(i) and (j). On behalf of the Office of the Governor, Mr. Alexander explained:
We consider the documents you seek to be preliminary in nature . . . . [T]he draft minutes for the Blue Ribbon Panel's May 31, 2006, meeting . . . provide as follows:
Based on the above, it is clear that the Blue Ribbon Panel has adopted language to be included in a final report document. However, at this time, the adopted language has not been incorporated into a final report document and disseminated to the members of the panel for final review and publication. Therefore, the document you seek retains its preliminary status and is exempt from disclosure.
Mr. Alexander referenced the written request of a Panel subcommittee that the Panel be reconvened for additional work, 3 and denied the existence of any other responsive records. He flatly denied the Commission's assertion that "the Blue Ribbon Panel adopted and signed a report regarding the Panel's investigation of the [Commission]," reiterating that "[a]n adopted and signed report does not exist."
On November 3, 2006, the Commission issued its response to the Office of the Governor's partial denial of its request, through Executive Director Linda Strite Murnane. The Commission challenged the subcommittee's letter as a basis for denial, noting that the unsigned letter, which is dated November 3, postdates the Commission's appeal. Additionally, the Commission proffered "two email communications from Mr. Alexander, indicating the report he now says is not 'final' was ready for release on August 24, 2006." 4 Shortly thereafter, the Office of the Governor issued its final response to the Commission's appeal, reaffirming its position that "the draft final report is a preliminary document exempt from disclosure, " and repudiating the Commission's position that Mr. Alexander's emails "indicate that the [Report] has been finally approved by the Panel and should be released." The emails were instead characterized as "an effort to have a coordinated date and time for release of the final report document after its dissemination to the members of the Panel for review and publication." 5 In sum, the Office of the Governor reasserted, "the draft final report is a preliminary document exempt from disclosure. " We agree.
We address first the procedural issues which the Commission's appeal raises. 6 As these parties are fully aware, KRS 61.880(1) establishes guidelines for agency response to an open records appeal, providing:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In those rare instances where an agency cannot discharge its statutory duty to disclose nonexempt public records, or issue a written denial, on the third day after receipt of the request, the agency may rely on KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6; 01-ORD-38, p. 7.
The Office of the Governor notified the Commission that it was "anticipated" that copies of the requested records would be available on November 3. 7 This response was deficient insofar as it failed to designate a date certain, as opposed to a projected or speculative date, on which the records would be available. Moreover, KRS 61.872(5) requires a detailed explanation of the cause for delay. The response issued by the Office of the Governor is devoid of explanation, detailed or otherwise, of the cause for delay. Accordingly, we find that the Office of the Governor committed a procedural violation of the Open Records Act in the disposition of the Commission's request.
Turning to the substantive issue in this appeal, we find that the Office of the Governor properly relied on KRS 61.878(1)(i) and (j) in denying the Commission's request. These exceptions authorize public agencies to withhold:
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.
In 00-ORD-139, and again in 00-ORD-195, this office reaffirmed its longstanding position on the issue of premature access to preliminary documents that fall within the parameters of KRS 61.878(1)(i) and (j). Copies of those decisions are attached hereto and incorporated by reference. In particular, we refer the parties to the discussions found at pages 5 through 11 of 00-ORD-139, and pages 4 through 9 of 00-ORD-195. Critical to our analysis in these decisions was the recognition that although the Open Records Act "exhibits a general bias favoring disclosure, "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), "the concept of governmental confidentiality has not been totally diluted by the . . . Act,"
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that from the exclusions to public inspection codified at KRS 61.878(1)(i) through (j), "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. Although the Commission makes a compelling argument for disclosure based on the public's right to know, we must adhere to precedent where it is so clearly controlling.
In 00-ORD-139, the disputed document consisted of a report, submitted to Sanitation District No. 1 by an outside consultant, containing "preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated and recommended concerning proposed rate increases the Board of Directors of Sanitation District No. 1 may wish to implement," 00-ORD-139, p. 1, which retained its preliminary characterization pursuant to KRS 61.878(1)(j) "until that report was evaluated, discussed, and approved by the District." 00-ORD-139, p. 12. "For good or ill," we noted at page 12 of the decision, "the Open Records Act does not require that a public record be disclosed while the public 'might still be able to influence the decision-making process.' . . . "
In 00-ORD-195, the disputed document consisted of salary and job evaluation data compiled for Eastern Kentucky University by an outside consultant, and submitted for review and comment. An in camera examination of the documents demonstrated "that the collection of data [was] still in progress and undergoing revision, and that [the consultant] ha[d] not yet reached the stage at which recommendations [would] be made, opinions expressed, and policies formulated and recommended. " 00-ORD-195, p. 8. We characterized the document as "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" that were excluded from inspection by KRS 61.878(1)(i). 00-ORD-195, p. 8 citing 97-ORD-183, p. 4. Noting that the university had expressly denied that any final agency action had been based on the draft report, we opined:
The fact that the materials submitted to date may have been referred to in one or more public forums . . . does not alter our conclusion inasmuch as this act, standing alone, does not signify formal adoption of a draft report.
00-ORD-195, p. 9; accord, 00-ORD-197; 04-ORD-108; 05-ORD-048.
The Blue Ribbon Panel has, as the Office of the Governor candidly acknowledges, "adopted language to be included in a final report document," but that language has not been "disseminated to the members of the panel for final review and publication," much less "incorporated into a final draft document." While we are somewhat perplexed by the unrefuted allegation that members of the Governor's staff, and perhaps the Governor himself, have had an opportunity to review the draft final report, it is abundantly clear that the Panel itself has taken no final action on the Report. 8 Like the reports at issue in 00-ORD-195, 00-ORD-197, 04-ORD-108, and 05-ORD-048, the document at issue in this appeal is a tentative version that remains subject to revision until such time as it is formally and finally adopted by the Blue Ribbon Panel. The Panel members have expressly reserved the right to review and revise the report before affixing their signatures to it, though the exercise of this right appears to be long past due. So long as the potential exists that one word will be changed, one correction made, or one sentence added or deleted, the Report may properly be characterized as a draft. We concur with the Office of the Governor in the view that it is shielded from public disclosure by KRS 61.878(1)(i) and (j), and find no error in its denial of the Kentucky Commission on Human Rights' open records request.
Having so concluded, we nevertheless feel obliged to comment on the Commission's understandable frustration 9 with continuing delays in release of the Report and to suggest a statutorily recognized method for ameliorating that frustration. KRS 61.878(5) provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
In construing this provision, the Attorney General has recognized that "public agency exchange of otherwise exempt public record is a 'laudable goal,' and one that is to be strongly encouraged," 96-ORD-177, p. 7, insofar as it "eliminates duplication of effort and conserves resources." Id. The provision "is grounded in the notion that the recipient agency will responsibly and appropriately use the [records or] information [provided]." 96-ORD-164 (overruled on other grounds in 96-ORD-177); accord, 03-ORD-211. Clearly, the Commission's open records request was submitted in the furtherance of a legitimate governmental need following several months of unexplained delays in release of a final report, and in anticipation of meetings with the Governor and members of his staff to discuss the Blue Ribbon Panel's conclusions. Although the language of KRS 61.878(5) is not mandatory, and the Office of the Governor cannot be deemed to have violated the Open Records Act in exercising its discretion under the provision in favor of nondisclosure, we urge his office to reconsider its position in light of these observations.
KRS 61.878(5) notwithstanding, the Office of the Governor enjoys discretion to release the report to the Commission and to the public generally. On this subject, the Attorney General has commented, "when the only interest affected by disclosure is a governmental interest, [as opposed, e.g., to a privacy interest], public agencies can make discretionary disclosures, of otherwise exempt public records. " 00-ORD-139, p. 11, 12; 00-ORD-195; 00-ORD-197. We reasoned:
[I]t is clear that the primary impetus [for enactment of the Open Records Act] was the recognized need to insure public agency accountability by establishing a statutory right of access to public records, and not to thwart access by requiring public agencies to withhold exempt records which they were otherwise inclined to release. In enacting this statutory scheme, the legislature did not intend to tighten an agency's grip on public records, thereby making it more difficult to gain access. Broader rights of access, rather than more restrictive rights of access, are the goal, and the means of achieving this goal is the fullest responsible disclosure.
00-ORD-139, p. 11, 12. In the interest of promoting the public's right to know the conclusions the Blue Ribbon Panel has reached after these many months, the Office of the Governor may wish to exercise its discretion in favor of disclosure as to the Kentucky Human Rights Commission and as to the public generally.
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.
Morgan G. Ransdell, Managing AttorneyKentucky Commission on Human RightsThey Heyburn Building, 7th Floor332 West BroadwayLouisville, KY 40202
James Deckard, General CounselOffice of the GovernorThe Capitol Building, Suite 100700 Capitol AvenueFrankfort, KY 40601
Michael Alexander, Deputy General CounselOffice of the GovernorThe Capitol Building, Suite 100700 Capitol AvenueFrankfort, KY 40601
Footnotes
Footnotes
1 Mr. Ransdell specifically requested that he be afforded an opportunity to inspect and copy records that included, but were not limited to: the meeting agenda; any notices or correspondence issued to the panel members or the public regarding this meeting; any record regarding the matters discussed at this meeting; the record of any vote taken during this meeting; and any document approved by the panel members at this meeting.
2 The Office of the Governor also provided the Commission with a copy of a November 3, 2006, letter from the Subcommittee Examining the Operations of Other State Agencies with Adjudicating Functions to the Chairman of the Blue Ribbon Panel, asking the Chairman to reconvene the Panel "for the purpose of reviewing important information that had not been considered during the Subcommittee's investigation and evaluation of other state agencies." It was the Office of the Governor's position that this letter suggests that "the Panel may still have additional work to do."
3 See note 1, above.
4 Our review of the attached emails does not confirm the Commission's position that Mr. Alexander indicated the Report "was ready for release on August 24, 2006." In the first of these emails, dated August 14, he states that the Report " should be ready for release to the public before the end of next week." (Emphasis added.) In the second, he states that "it is still anticipated that the . . . Report will be released by the end of the week." (Emphasis added.) Neither of these statements can be construed as an affirmative commitment to disclose the Report on August 24 or any other date certain.
5 The Office of the Governor noted that on November 6, the Chairman of the Blue Ribbon Panel issued a written request to Panel members asking that the Panel reconvene in November.
6 The response issued by the Office of the Governor was overdue by one day. We will not belabor this issue. The request reached the Office on October 20. The Office's response time began to run on October 23. Its response should have been dated and postmarked October 25, 2006. See KRS 446.030(1)(a); 96-ORD-207; 99-ORD-188; 01-ORD-140; 06-ORD-230.
7 This projected date for disclosure, we assume, related only to those records that the Office of the Governor determined, upon review, were not exempt from public inspection.
8 Our conclusion turns not on the fact that a request has been made to the Chairman to reconvene the Panel, and he has responded accordingly, but on the fact that the Panel has reserved the right to review the draft final.
9 Executive Order 2005-219 states, at numbered paragraph 3 that the Panel "shall submit a detailed report to the Governor, with recommendations for executive and/or legislative implementation addressing the issues set forth herein, on or before August 1, 2005." Assuming that the referenced report is the report at issue in this appeal, it is long overdue.