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 Explorium of Lexington violated the Open Records Act in the disposition of Aaron L. Wilson's June 24, 2006, request to inspect emails naming or pertaining to Mr. Wilson, AmeriCorps*VISTA Member, sent to or from a specified email address belonging to Explorium employee Sara Holcomb, 1 from or to any user whose email address contains the domain "@carnegieliteracy.com" or "@cns.gov," including, but not limited to, Rachel Noble, Emily Webb, Jan Isenhour, Betsy Wells, Delois Mitchell, and/or Dale Tucker. Although we are aware that the policies underlying KRS 61.878(3) would be served by disclosure of the records identified in Mr. Wilson's request, we nevertheless affirm Explorium's partial denial of that request on the basis that he was not an employee of Explorium and therefore did not enjoy "public agency employee" status for purposes of KRS 61.878(3).
By letter dated July 14, 2006, Explorium notified Mr. Wilson that one nonexempt responsive record had been located and was available for inspection during regular business hours. Alternatively, Explorium offered to mail a printout of the email to him "upon . . . receipt of the copying and mailing costs which are $ 1.00." 2 That record was identified as "the email from Sarah Holcomb to Rachel Noble reflecting final action with respect to Aaron Wilson . . . ." As for Mr. Wilson's remaining requests, Explorium indicated that the responsive emails "are all preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency pursuant to KRS 61.878(i) [sic] and/or preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended pursuant to KRS 61.878(j) [sic]."
On April 27, 2007, Mr. Wilson initiated this appeal, questioning Explorium's reliance on KRS 61.878(1)(i) and (j) and noting that he was "placed at EL by the Carnegie Center which had oversight authority via a memorandum of understanding it had with AmeriCorps*VISTA. " It was his position that "[t]his should be a sufficient nexus for me to qualify for the status of 'public agency employee,' which I am currently in another public agency. " In addition, Mr. Wilson asserted, "once final agency action was taken on June 16, 2006, these records lost their preliminary nature." Finally, Mr. Wilson argued that it was incumbent on Explorium to "list exactly how many emails" were located so that he could "clearly understand the number in existence, and [be] afford[ed] . . . access to same."
In supplemental correspondence directed to this office following commencement of Mr. Wilson's appeal, Explorium disputed Mr. Wilson's claim that KRS 61.878(3) vests him with broader rights of access to records relating to him because he was a public agency employee during the period he was associated with Explorium. On behalf of Explorium, attorney C. Bradford Harris maintained:
Explorium of Lexington does not believe that KRS 61.878(3) applies because Mr. Aaron [sic] is not currently and never was an employee of Explorium. Mr. Aaron [sic] was a volunteer through the Americorps Volunteers in Service for America program ("VISTA" ). Mr. Aaron [sic] was placed with Explorium by the Carnegie Center. He was removed from his volunteer position in accordance with the VISTA guidelines, not the Explorium of Lexington's employee handbook.
In response to Mr. Wilson's apparent belief that he is entitled to Explorium's records by virtue of his current public employment in another public agency, Mr. Harris observed:
It is clear from the statute that this was not the intent of the statute. The intent was to allow a public agency employee access to information about his employment with a particular public agency that he was employed with. Public agency employees should not be given greater entitlement to inspect the records of another public agency than any other member of the public.
With reference to Mr. Wilson's demand for greater clarity in the disposition of his request, Mr. Harris asserted that Explorium has no "obligation under the statutes to list how many emails are subject to the [cited] exemptions. "
In a reply dated May 20, 2007, Mr. Wilson pursued the argument that his past and current public employment vests him with broader rights of access to records relating to him under KRS 61.878(3) and elaborated on his position that he was, in fact, an employee of Explorium. He noted that he:
successfully completed a year of service in the Jefferson County Public Schools prior to my term of service at EL. Also, I had an email address on EL's domain, a plastic faub for entry to outside doors, and a key for entry to my assigned office space which contained my assigned desk, attended the weekly staff meetings and filled out at least one EL timesheet. Please see the attached emails of "STAFF NOTES" dated April 18 and May 11, 2006. In the "To:" line of the former email, my former email address (aaron @explorium. com) appears next to the last one in the list. On the latter, my name appears in the " WHO'S OUT: " section. Thus, I had essentially all the pertinent things the other employees had.
Responding to Explorium's argument that his current public employment vests him with no greater entitlement to Explorium's records than any other member of the public, Mr. Wilson argued:
I believe the language of the statute is construed to impart a broad entitlement to a public agency employee, and as such, records of another public agency that relate to me are included in the intent. The statute is exact in that it permits me '. . . to inspect and to copy any record . . .' such as the ones at issue here that relate to me. The statute clearly makes no limitation as to the public agency which maintains the records having to be or have been the public agency employee's employer.
In closing, Mr. Wilson contested Explorium's assertion that it has "no obligation to list the number of exempted emails, " citing 05-ORD-144 and the subsequent opinion issued by then Franklin Circuit Court as a result of the appeal of that decision wherein "154 emails were not only enumerated, but categorized as well." 3 He noted that Explorium did not respond to his argument that the disputed records forfeited their preliminary status when "final agency action [was] taken on June 16, 2006," and reasserted this position.
Having reviewed the record on appeal, along with the Memorandum of Understanding governing Mr. Wilson's association with Explorium, and supplemental materials located on the Corporation for National & Community Services' website, http://www.americorps.gov, we find that Mr. Wilson was not an employee of Explorium, or a public agency employee for all relevant purposes. Further, we find that he was not entitled to inspect preliminary records relating to his early termination by the Corporation under the provisions of the Open Records Act because the final action taken was that of the Corporation and not that of Explorium. Inasmuch as Explorium took no final action, it cannot be said to have adopted the disputed preliminary records as part of a final action. 4 We further find that although his past employment by the Jefferson County Public Schools vested him with broader rights of access to otherwise exempt records relating to him that were generated or maintained by that agency, and that his current employment with the Kentucky State Police/ Facilities Security vests him with broader rights of access to otherwise exempt records relating to him that are generated or maintained by that agency, his past and current public employment status has no bearing on his right of access to records of a public agency by which he was not employed.
Our review of the Memorandum of Understanding upon which Mr. Wilson heavily relies in asserting his status as a public agency employee discloses a number of salient facts, chief of which is the fact that, as an AmeriCorp*VISTA Member, Mr. Wilson was "not . . . considered [an] employee[] of the Sponsor [Explorium of Lexington]." This statement appears at page 3, section 16, under the heading "Basic Provisions: Memorandum of Understanding. " That section states in full: "AmeriCorp*VISTA Members shall not be considered employees of the Sponsor." He was, instead, considered a "VISTA Member," http://www.carnegieliteracy.org/ fag.htm, whose benefits were derived from AmeriCorp*VISTA, including health coverage, payroll services, training, liability coverage under the Federal Employees Compensation Act, and FICA. http://www.americorp.gov/for organizations/apply/vista. asp.
The "Grounds for Member Termination" which governed Mr. Wilson's early termination were established by the Corporation for National & Community Services, and appear at pages 69 through 71 of the "Americorp*VISTA Member Handbook." At page 70, the Handbook expressly provides, "The sole responsibility for terminating or transferring a member rests with the Corporation." See also, Memorandum of Understanding, p. 5, Separation from Volunteer Service (recognizing that "a member may be terminated at any time for failure to meet terms and conditions of VISTA service," and that even if the site requests removal of the VISTA Member "[d]iscussion of individual separations will occur between CNCS staff, CCLL staff, VISTA site staff, and the member"). These resources clearly establish that Mr. Wilson was not an employee of Explorium or a public agency employee for purposes of the Open Records Act, and that Explorium's role in his termination was largely passive. It is for this reason that we conclude that KRS 61.878(3) is inapposite.
KRS 61.878(3) provides as follows:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In 06-ORD-188, this office tangentially addressed the issue of Mr. Wilson's right of access to emails relating to him that were in the possession of the Carnegie Center under KRS 61.878(3). Resolution of that appeal turned on the Center's production of all recoverable emails that were responsive to his request and not on the application of KRS 61.878(3). Nevertheless, at page 9 of that decision, we observed:
By virtue of this provision, if Mr. Wilson qualified as a "public agency employee" under KRS 61.878(3), he would be vested with a broader right of access to records relating to him than the general public has to the same records. Records that would otherwise be shielded from disclosure as preliminary drafts or notes pursuant to KRS 61.878(1)(i), or preliminary recommendations and memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, would be accessible by Mr. Wilson if those records relate to him. 06-ORD-083. The Carnegie Center advised that Mr. Wilson is an AmeriCorps*VISTA Volunteer and the Carnegie Center has a Memorandum of Understanding with VISTA which it oversees the placement of 20 volunteers in 13 local agencies. This oversight authority by the Carnegie Center may be a sufficient nexus for Mr. Wilson to qualify for the status of "public agency employee," and the application of KRS 61.878(3). However, it is unnecessary for us to resolve this issue here. The fact of the matter is that Mr. Wilson was not denied access to these e-mails. The Carnegie Center provided all the e-mails it had or was able to recover that were responsive to his request.
06-ORD-188, p. 9.
On closer scrutiny, we conclude that the referenced Memorandum of Understanding, and the oversight authority extended to Explorium by it, did not create "a sufficient nexus for Mr. Wilson to qualify for the status of 'public agency employee' and the application of KRS 61.878(3).'" Mr. Wilson was a "VISTA Member" during his association with Explorium, and not an employee of Explorium. While we acknowledge that the rationale underlying KRS 61.878(3) would arguably be served by disclosure of the disputed emails, and that Mr. Wilson was vested with many of the accoutrements of public employment, we do not believe that Explorium has a legal obligation to release the records to him under the referenced provision. At the risk of elevating form over substance, we find that Mr. Wilson was not a public agency employee for purposes of the Open Records Act, and that he enjoyed no broader right of access to otherwise exempt records relating to him that were generated or maintained by Explorium, notwithstanding his previous public employment with the Jefferson County Public Schools and his current employment with KSP's Facilities Security. To the extent that our decision in 06-ORD-188 intimated that he might enjoy broader rights of access, it is hereby modified.
In 06-ORD-180, we analyzed Dorothea Wilson's right of access to "emails originating from or transmitted to the referenced email accounts that name or pertain to Aaron L. Wilson." 5 There, we affirmed Explorium's denial of Ms. Wilson's request on the basis of KRS 61.878(1)(i) and (j), emphasizing that "[o]ur review of the disputed emails confirms Explorium's position that they consist of drafts, notes, and interagency communications in which opinions are expressed, policies formulated, and recommendations made." 06-ORD-180, p. 8. Having again reviewed the emails, for purposes of resolving Mr. Wilson's appeal, we reaffirm our position. We now find additional support for our position in the fact that the final action taken relative to Mr. Wilson's status was taken by the Corporation for National & Community Service and not by Explorium. See, "AmeriCorp*VISTA Handbook," p. 70 and Memorandum of Understanding, p. 5. Because Explorium took no final action relative to Mr. Wilson's status, it could not have adopted these preliminary emails as part of its final action. Accordingly, these emails retained their preliminary status.
We find wholly unpersuasive Mr. Wilson's argument that because final action was taken, the disputed emails forfeited their preliminary character and were thereafter publicly accessible. In 06-ORD-061, a copy of which is attached hereto and incorporated by reference, this office affirmed a public agency's reliance on KRS 61.878(1)(i) and (j) to support its denial of a request for records relating to the suspension of an agency employee. We expressly rejected the requester's claim that because final action had been taken, the preliminary documents requested were no longer preliminary, observing, at page 6:
We are aware of no existing legal authority supporting [the requester's] position that once action is taken, documents relating thereto in some form or fashion are no longer preliminary and must be disclosed in toto. [The requester] cites no such specific authority. In our view, the proper standard for determining when investigative records, such as those in dispute, forfeit their preliminary character is found at page 659 of City of Louisville [v. Courier Journal, Ky. App., 637 S.W.2d 658 (1982)]:
Accord, Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App. 663 S.W.2d 953, 956, 957 (1983) holding that "once such notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost," and "those documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records;" and University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992) ratifying the principle 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. " "To adopt," this office has observed, "means 'to accept, appropriate, choose, or select,' Black's Law Dictionary 45 (5th ed. 1979), or '[t]o take and follow (a course of action) by choice or assent . . . [t]o take up and make one's own." American Heritage Dictionary 12 (3rd ed. 1994). 02-ORD-18, p. 6, citing 01-ORD-83. In each of these decisions, the Attorney General reaffirmed the longstanding principle that only if notes or recommendations are adopted by the agency as part of its action is the preliminary characterization of those documents lost. The triggering event for forfeiture of preliminary status is, then, not the occurrence of final action, but the occurrence of final action accompanied by some indication that the underlying preliminary records were adopted by the agency as part of the action.
06-ORD-061, p. 6 (emphasis added). Based on the referenced authorities, we find Mr. Wilson's analysis of the Open Records Law, as it relates to the preliminary documents exceptions, flawed.
In sum, the emails to which Mr. Wilson requested access were not adopted as part of Explorium's final action. Indeed, Explorium had no authority to take final action. The emails continued to enjoy protection under KRS 61.878(1)(i) and (j) after the Corporation took final action, and remained inaccessible to Mr. Wilson because he was not a public agency employee of Explorium for purposes of KRS 61.878(3). On this basis, we affirm Explorium's partial denial of his request.
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.
Aaron L. Wilson101 Flintroy CourtGeorgetown, KY 40324-1835
Sara Nees HolcombOfficial Records CustodianExplorium of Lexington440 West Short StreetLexington, KY 40507
Brad Harris2500 Eastpoint ParkwayLouisville, Kentucky 40223
Footnotes
Footnotes
1 We omit Ms. Holcomb's address in the interest of reducing unsolicited emails directed to her address.
2 The proposed imposition of a $ 1.00 copying charge raises the issue of the reasonableness of that charge under KRS 61.874(3). See, 01-ORD-136 (enclosed).
3 With reference to Mr. Wilson's criticism of the specificity of Explorium's denial, we refer him to 97-ORD-41, p. 6, in which this office held:
[N]either this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974). We believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted] . . . .
In the same decision, the Attorney General suggested that the agency "might characterize one or more of the records withheld as 'correspondence from [the agency's attorney] to the [agency] on questions pertaining to franchise renewal' and deny access on the basis of KRE 503 and KRS 61.878(1)(l) as privileged lawyer client communications." Id. p. 7. Consistent with this holding, we find Explorium's description of the group of responsive records implicated by Mr. Wilson's request, and its particularized justification for the withholding of same, sufficient under the Act. Accord, 06-ORD-180.
4 This issue is, admittedly, complicated by the fact that Explorium itself refers to its "final action" in its July 14, 2006, response to Mr. Wilson's request. Nevertheless, the authorities located indicate that Explorium had no actual authority to take final action on Mr. Wilson's member status and that that authority, instead, resided in the Corporation.
5 These email accounts largely mirrored the email accounts identified in Mr. Wilson's request that are the subject of this appeal.