07-ORD-108 | KOGC

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 University of Louisville violated the Open Records Act in partially denying Courier-Journal reporter R. G. Dunlop's March 27, 2007, request for:

. Any written or electronic correspondence between the university and Dr. [Steve] Henry pertaining to [his gratis faculty] appointment with the University of Louisville, and with the termination of that appointment last December[;]

. [any records in which] Dr. Henry's lack of board certification . . . was mentioned or addressed in an accreditation review of the department of orthopedics in particular, or in the medical school in general, or [any record] pertaining to an accreditation review, whether said document was generated by the university or by the accrediting agency[;]

. [any written or email correspondence between the department in particular, the university in general, and Dr. Henry in which] Dr. Henry's lack of board certification was the subject. 1

For the reasons that follow, we find that the University's reliance on KRS 61.878(1)(a), (i), and (j) to support the partial denial of Mr. Dunlop's request was misplaced.

On April 2, 2007, the University notified Mr. Dunlop that "[w]ith respect to correspondence related to Dr. Henry's appointment, the department identified" thirty responsive documents. The University released only six of these documents, 2 explaining that the records withheld:

Constitute[] a personal evaluation . . . resid[ing] in except classes of records described in the statute as "preliminary drafts, notes, . . . other than correspondence which is intended to give notice of final action of a public agency" (KRS 61.878(1)(i)), and "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" (KRS 61.878(1)(j)). [The records do] not constitute the University's final action. Furthermore, the writers of evaluations work under an expectation of confidentiality. The "public disclosure" of such records . . . "would constitute a clearly unwarranted invasion of personal privacy" (KRS 61.878(1)(a)). The consideration of privacy expectation in personnel evaluations extends to all University employees.

Shortly thereafter, The Courier-Journal initiated this appeal, questioning the University's reliance on the cited exceptions in light of the general rule of strict construction of the exceptions codified at KRS 61.871, and a recent opinion of the Kentucky Court of Appeals disapproving a "bright-line rule . . . completely excluding employees' performance evaluations." Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006).

In supplemental correspondence directed to this office following commencement of The Courier-Journal's appeal, the University amplified on its position. 3 It was the University's position that:

The records excluded in the present instance contain information, opinions, and recommendations which are exempted under KRS 61.878(1)(j), as so recognized in 94-ORD-132, as necessary to protect "the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. " Further, the Attorney General has long recognized the privacy interests of persons who make evaluative comments or contribute in an evaluative process. See 06-ORD-001. [The University] correctly noted this additional basis for . . . exclusion, citing KRS 61.878(1)(a).

The University distinguished Cape Publications, Inc. v. City of Louisville, above, on the basis that although the records withheld were evaluative in nature, they were not "formal evaluations of the type considered in" that case.

Unable to resolve this dispute on the written record before us, this office requested copies of the records in dispute for in camera inspection pursuant to KRS 61.880(2)(c), 4 on May 9, 2007. We disagree with the University's characterization of the disputed records as evaluative in nature. Having reviewed the records, we find that they consist, by in large, of objective reports of fact in the form of narrative accounts of events rather than subjective expressions of opinion in the form of evaluations. Assuming, arguendo, that the records consist of opinion and recommendation, we find that the records forfeited their preliminary characterization when they were adopted by the University as part of its final action. Recognizing that examination of public records "may cause inconvenience or embarrassment to public officials or others," we nevertheless find that the legislative presumption "that free and open examination of public records is in the public interest" overrides any privacy interests that are implicated by disclosure of the disputed record. KRS 61.871.

In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, and quoted above, as well as by the Kentucky Supreme Court's holding in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of the fact that:

[d]espite 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 are 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; see also, Courier-Journal and Louisville Times Co. 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" ). Guided by these principles, and an evolving body of case law, the Attorney General has consistently recognized that public records that are preliminary in nature qualify for exclusion only if they consist of drafts, notes, or correspondence with private individuals and/or recommendations or memoranda in which opinions are expressed or policies formulated, and that such records forfeit their exempt status if they are adopted by the agency as part of its final action. City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.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., above; see also, 01-ORD-83; 02-ORD-25; 03-ORD-030; 04-ORD-187; 06-ORD-061.

KRS 61.878(1)(i) authorizes 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.

In 97-ORD-183, this office dissected the language of the exception, observing:

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 . . . ." [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. (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, 94-ORD-38, and 00-ORD-195.

97-ORD-183, p. 4.

The disputed records are not drafts. They do not represent a tentative version, sketch, or outline of a formal and final written product such as the draft reports referenced above. Nor are the records notes. They were not created as an aid to memory or as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67; 97-ORD-183 (holding that KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). They are, instead, formal written instruments consisting, in large part, of narrative accounts of events occurring at the University's School of Medicine punctuated by an occasional opinion or recommendation. Finally, they do not qualify for exclusion from public inspection as "correspondence with private individuals, other than correspondence that is intended to give notice of final action of a public agency. " In 00-ORD-168, this office 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. " 00-ORD-168, p. 2. The exception does not extend to correspondence transmitted by and to university medical school employees and officials, and is therefore facially inapplicable. We are therefore not persuaded that the disputed records fall within the parameters of KRS 61.878(1)(i) as that exception has been, and must be, strictly construed.

Similarly, we are not persuaded that the disputed records are shielded from disclosure by operation of KRS 61.878(1)(j), which excludes from public inspection:

Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.

The purpose underlying KRS 61.878(1)(j) has been widely discussed and turns on the recognition that:

[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government tot 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. KRS 61.878(1)(j) is thus "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." 00-ORD-139, p. 6, citing 94-ORD-118 and 93-ORD-125. That purpose is not served by nondisclosure of records that are largely devoid of opinion and recommendation. See, e.g., OAG 80-596; 96-ORD-32; 99-ORD-27; 99-ORD-128; 01-ORD-17. In the latter decision, this office rejected the argument that a fact-based analysis of a sports program was "evaluative in nature," concluding that it was "instead, an objective report of facts," and that "[i]n light of the rule of strict construction, codified at KRS 61.871, that the exceptions are to be strictly construed, and thus given no broader application than is necessary to effectuate their purposes," the agency's reliance on KRS 61.878(1)(j) to justify nondisclosure of the record was misplaced. As noted above, the disputed records in the instant appeal largely consist of fact-based narratives of events occurring at the University's Medical School and are virtually devoid of opinion or recommendation. Consistent with this line of authorities, we find that the University improperly relied on KRS 61.878(1)(j) in withholding the records.

Assuming, arguendo, that the disputed records consisted exclusively of opinion and recommendation, and enjoyed protection from disclosure under KRS 61.878(1)(j) prior to the University's October 30, 2006, decision to "discontinue [Dr. Henry's] active participation in our program effective 1 Nov. 2006," 5 their preliminary characterization was lost when the University took this final action. Both the courts and this office have long recognized that predecisional documents that are incorporated into, or form the basis of, final agency action, forfeit their preliminary characterization and must be disclosed. See, e.g., City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982) (holding that if agency decision maker "adopts" preliminary notes or recommendations "as part of his final action, " their preliminary characterization is lost to that extent); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 956 (1983) (holding that preliminary records that are adopted by the agency "as the basis of its final action" become releasable); University of Kentucky v. Courier-Journal and Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992) (holding that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See also, 00-ORD-125 and authorities cited therein.

Our review of the October 30, 2006, letter to Dr. Henry, referencing the "process of internal review [which] looks at patient care activities, credentialing, feedback from our residents and students, and faculty evaluations" and concluding that "[i]t seems logical then . . . for [Dr. Henry] to discontinue active participation in our program," confirms that the underlying documentation formed the basis of this final action. 6 That documentation's preliminary characterization was thereafter forever lost, and the University's reliance on KRS 61.878(1)(j), to the extent it was ever valid, was thereafter improper.

Finally, we find unpersuasive the University's argument that KRS 61.878(1)(a) authorizes nondisclosure of the requested records. That exception authorizes nondisclosure of:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

In 1992, the Kentucky Supreme Court established a standard by which we assess the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At page 327 and 328 of Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Court articulated the following standard:

[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.

The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.

The Court of Appeals later refined this standard. In Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 328 (1994), the court discussed its "mode of decision":

[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance.

Subsequent opinions of the courts have uniformly confirmed this analysis. See, e.g., Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App., 2001); Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997); Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994). In Palmer, for example, the court determined that the public's interest in disclosure of a record charging specific acts of misconduct by a public employee was superior to the employee's privacy interest. The court distinguished those cases in which the information sought "concern[ed] an innocent, private citizen," concluding that the information contained in the requested record "presents a matter of unique public interest. " Palmer at 599.

Here, as in Palmer, we believe "the public had a legitimate interest in knowing the underlying basis" for the University's decision to "discontinue [Dr. Henry's] active participation" in its gratis faculty program. Id. This is particularly true in light of the fact that the disputed records focus on Dr. Henry's performance of his public duties as a gratis faculty member 7 and not on his personal conduct. Given this fact, we do not believe that the records can properly be said to contain information of a personal nature. Assuming, arguendo, that they do, we believe that his privacy interests are subordinate to the public's interest in disclosure. We therefore conclude that the University of Louisville's reliance on KRS 61.878(1)(a) to support nondisclosure of the disputed records was misplaced.

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.

Jon L. Fleischaker

William J. Morison, Ph.D.Open Records OfficerUniversity of Louisville400 Ekstrom LibraryLouisville, KY 40292

Angela D. KoshewaGeneral CounselUniversity of LouisvilleGrawemeyer Hall, Room 206Louisville, KY 40292

R. G. Dunlop, Reporter The Courier-Journal 525 W. BroadwayP.O. Box 740031Louisville, KY 40201-7431

Footnotes

Footnotes

1 Mr. Dunlop also requested records relating to donations made by Dr. Henry to the University of Louisville, University of Louisville Foundation, and the "Bucks for Brains" program between 1995 and the present. Pursuant to KRS 61.872(4), the University notified Mr. Dunlop that he should redirect this portion of his request to the Foundation. Mr. Dunlop apparently did so, and does not pursue this issue on appeal.