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 properly relied on KRS 61.878(1)(a), (i), and (j) in denying the June 5, 2007, request of Courier-Journal reporter Joseph Gerth for copies of:
"? any records of written telephone messages taken for the governor or his office or at the governor's mansion during April and May of 2007. This request is seeking documents both on paper and on computer.
For the reasons that follow, we conclude that the Office of the Governor properly denied the request for copies of the telephone messages under authority of KRS 61.878(1)(i) and
Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6 (1995).
By letter dated June 8, 2007, Garland "Andy" Barr, Deputy General Counsel, Office of the Governor, denied Mr. Gerth's request, advising in relevant part:
In Courier-Journal v. Jones, Ky. App., 895 S.W.2d 6 (1995), news organizations sought Governor Brereton Jones' daily appointment ledgers for various time periods, including a year-long period of December 1991 to December 1992. The Court explained that "while the raw material in the Governor's appointment calendars and schedules is factual, its essence is deliberative. Accordingly we are persuaded that the public interest in withholding disclosure of the Governor's appointment calendars and schedules is considerable." Id. At 8 (quoting Times Mirror Co. v. Superior Court, 283 Cal. Rptr. 893 (1991). The Court concluded that the Governor's schedule is "nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference." Id. at 10 (emphasis applied).
This analysis applies even more so to the telephone messages taken in the Governor's office, which are preliminary by their very nature. Telephone messages suggest that further deliberative action needs to be taken, such as a return phone call. But phone calls may or may not be returned and the messages themselves often contain preliminary opinions, ideas or observations. In fact, when considering the context in which the Jones case was decided, telephone messages are almost always antecedent to the scheduling decisions which the Court described as preliminary. Therefore, "records of written telephone messages" exist to assist the Governor in conducting his affairs "with some semblance of orderliness, " and no less than his calendar or schedule, his phone messages should be free from media interference under KRS 61.878(1)(i) & (j).
By letter dated June 13, 2007, Jon L. Fleischaker, legal counsel, appealed the denial on behalf of The Courier-Journal. He argued that there is significant public interest in knowing who has left messages for the Governor, the purpose of those messages and how they may have influenced the Governor's decisions and actions. Addressing the Governor's reliance upon KRS 61.878(1)(i) for withholding access to the telephone messages, he argued that a record of a telephone call is not a preliminary document. He distinguished the application of Jones and KRS 61.878(1)(i), stating:
...Unlike the calendar entries at issue in Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky. App. 1995), a written record of a telephone message is not a "draft" of what may or may never take place. Nor is it subject to revision. Rather it is a final document written by a member of the Governor's staff to inform him of a telephone call that has already occurred. The fact that another telephone call, a meeting, or some other action may follow does not render the written record of the telephone message preliminary.
Nor can the written messages of telephone calls be characterized as correspondence with private individuals under KRS 61.878(1)(i). In 94-ORD-133, the Attorney General recognized telephone calls are not "correspondence with private individuals because they are oral communications and, as such, do not comport with the generally accepted usage of the term "correspondence, " which implies a writing. The records at issue here were not written by private individuals; they were written by members of the Governor's staff. The fact that a member of the Governor's staff wrote the telephone message on a piece of paper or on a computer does not transform the telephone call itself -- even if the call was from someone who could properly be classified as a "private citizen" under KRS 61.878(1)(i) -- into "correspondence. " Further, many of the records at issue here are certainly reflective of telephone calls from non-private individuals.
After receipt of notification of the appeal, Mr. Barr provided this office with a response to the issues raised in the appeal. In his response, he advised that the telephone messages often explicitly direct that further deliberative action needs to be taken, such as a return phone call. Addressing the application of Jones and KRS 61.878(1)(i) as a proper basis for denying access to the telephone messages, Mr. Barr advised in relevant part:
Moreover, despite Mr. Fleischaker's protestations that a phone message is not a "draft of what may or may never take place, " such as the Governor's calendar or schedule in the Jones case, the rationale behind the exceptions contained in KRS 61.878(1)(i)&(j) applies even more to phone messages. To reiterate from our denial letter, these exemptions 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 discussions of matters of concern to the agency. See, e.g., 94-ORD-118 and 93-ORD-125." So to order the disclosure of these phone messages would be completely incongruent with the prevailing precedent from the Court of Appeals on this subject:
Jones, 895 S.W.2d. at 8.
The same analysis applies even more to drafts or notes memorializing phone messages. If the law exposed these handwritten messages to media scrutiny, it would likely eliminate or significantly diminish the chances that these messages would ever be delivered to the intended recipient or recorded in the first place. Not only would this disrupt the efficient operations of this Office and prevent the Governor from conducting his affairs "with some semblance of orderliness, " it would effectively impede or even shut down the flow of complete and candid information to the Commonwealth's Chief Executive. Id., at 10.
We agree with the Office of the Governor's analysis and reliance upon Jones and KRS 61.878(1)(i) in withholding access to copies of the Governor's telephone messages and find that the agency's denial of the request did not violate the Open Records Act.
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 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.
In 05-ORD-018, this office did an extensive analysis of the policy considerations of governmental confidentiality as expressed in Jones. It is instructive to quote from 05-ORD-018 at length:
In Jones, above, the Kentucky Court of Appeals analyzed the propriety of then Governor Brereton Jones' denial of media requests for access to his daily appointment ledgers 1 on the basis of KRS 61.878(1)(i) and (j). The court resolved this issue in favor of the Governor, identifying KRS 61.878(1)(i) as "the crux of this case," id., and Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994) as "the latest expression" of that exception from the Kentucky Supreme Court. The Court of Appeals quoted from Beckham:
Id. at 8 quoting Beckham.
The court also referenced OAG 78-626, affirming the City of Louisville's denial of a request for the mayor's appointment calendar, in which the Attorney General reasoned:
Ultimately, the Court of Appeals concluded that it:
Id. at 10.
The Kentucky Court of Appeals found support for its holding in Times Mirror Co. v. Superior Court of Sacramento, 53 Cal. 3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991), a case "emanat[ing] from a sister state's court of last resort." The Jones court quoted extensively from the California court's opinion, including the "balancing of interests" analysis which the latter court resolved in favor of the Governor. The California court weighed the Governor's interest in protecting the essentially deliberative nature of his calendar against the public interest in determining "whether the state's highest elected officer was attending diligently to the public business," id. at 9 quoting Times Mirror, and concluded that the Governor's interest "in nondisclosure 'clearly outweigh[ed]' the public interest in disclosure. " Id. at 8 quoting Times Mirror.
The Kentucky Court of Appeals also quoted with approval that portion of Times Mirror dealing with past schedules:
Recognizing that "access to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence, are essential to effective governance in a representative democracy," the Times Mirror court concluded that the "interest served by not disclosing the Governor's appointment calendars and schedules clearly and substantially outweighs the public interest in their disclosure. "
KRS 61.878(1)(i) excludes from public inspection:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]
OAG 78-626, p. 2. In 97-ORD-183, p. 4., this office dissected the language of the exemption:
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, and 94-ORD-38.
97-ORD-183, p. 4. (Emphasis added). In 00-ORD-132, we held that the Department of Local Government properly characterized a handwritten note of a telephone conversation as a "note", exempt from disclosure under KRS 61.878(1)(i), stating that it represented a brief record written down as an aid to memory and was in the nature of a tool used in hammering out official action rather than the official action itself. In OAG 87-24, we held that a note or memorandum pertaining to a telephone call between agency personnel and a public official was a preliminary intra office memorandum that could be excluded from inspection pursuant to KRS 61.878(1)(i). In OAG 84-342, we stated that if the requested telephone "slips" refer to telephone messages, they would be exempt under what is now KRS 61.878(1)(i).
We find that the telephone messages 2 are "notes" for intra office use, which constitute a "brief record written down as an aid to memory and in the nature of a tool used in hammering out official action rather than the official action itself," and, although factual, are subject to the deliberative process of government as a working paper. KRS 61.878(1)(i); 00-ORD-132. As the court observed in Jones, at p. 9, quoting Times Mirror, access "to a broad array of opinions and the freedom to seek all points of view, to exchange views, to exchange ideas, and to discuss policies in confidence, are essential to effective governance," and that "[p]articipants may be chilled and discouraged by the knowledge that a meeting will routinely be disclosed." Although there is a recognized public interest in ascertaining whether the state's highest elected official is "attending diligently to the public business" via access to his telephone messages, the Kentucky Court of Appeals has determined that interest must yield to the interest in governmental confidentiality and the protection of the deliberative process. Accordingly, we adopt the court's reasoning in Jones and prior decisions of this office and conclude that the telephone messages are exempt from disclosure under KRS 61.878(1)(i). 05-ORD-018; 05-ORD-145.
Resolution of this appeal turns on judicial precedent dating back to 1995 and this office's recognition that "if changes in the law are to be made, they should be made by the legislature and if subtle interpretations [of the law] are to be made, they should be made by the Court." OAG 80-54, p. 4. On this basis, we affirm the Governor's denial of The Courier-Journal's request.
Because KRS 61.878(1)(i) , as construed in Courier-Journal v. Jones, above, authorize nondisclosure of the Governor's telephone messages in their entirety, and are dispositive of this appeal, we need not address other arguments relied upon by the Governor in support of the denial of the request of The Courier-Journal and reporter Joseph Gerth.
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 Interchangeably referred to throughout the opinion as "appointment calendars, " "appointment schedules," and "private itinerary."
2 Telephone messages are distinguished from normal telephone business records, such as billing records and calls made which document use of public equipment and which are subject to public inspection unless the public agency meets its burden of showing the withheld telephone numbers are exempt from disclosure under relevant exceptions of the Open Records Act. 97-ORD-188; 00-ORD-198.