Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Finance and Administration Cabinet, Department for Facilities and Support Services violated the Kentucky Open Records Act in the disposition of Larry L. Roberts' request for copies of requests for "solicited proposals issued by the Department for Facilities and Support Services on behalf of the Commerce Cabinet, Department of Parks, including, but not limited to the Lodge at Kincaid Lake State Park and the Indoor Water Park at Kentucky Dam Village State Park." Although the Department initially erred in failing to either cite the applicable exception and briefly explain how it applies to any records withheld, as contemplated by KRS 61.880(1), or give a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5), the Finance Cabinet ultimately invoked KRS 61.878(i) and (j) and satisfied its burden of proof 1 relative to same. Because any requests for proposals which are responsive to Mr. Roberts' request, aside from those already provided, have not been issued but are still being drafted, any related materials are preliminary and can properly be withheld.
By letter directed to Commissioner Jim Abbott, Department for Facilities and Support Services, on May 15, 2007, Larry L. Roberts, State Director, Kentucky State Building and Construction Trades Council, requested, in relevant part, 2 "all similar solicited proposals" 3 issued by the Department concerning the aforementioned projects. On June 25, 2007, Irwin H. Cutler, Jr., Council Attorney, notified Patrick W. McGee, Office of General Counsel, Finance and Administration Cabinet, that on or about June 11, 2007, Mr. Roberts had "received copies of various records, but not all of the records requested." To begin, Mr. Cutler noted that Mr. Roberts "asked for copies of requests for proposals issued by" the Department "on behalf of the Commerce Cabinet, Department of Parks, similar to requests for proposals regarding Green River Lake State park and General Burnside Island State Park." More specifically, Mr. Roberts "asked for the requests for proposals related to the Lodge at Kincaid Lake State Park and the Indoor Water Park at Kentucky Dam Village State Park." As of that date, Mr. Roberts had "not received those requests for proposals." Consequently, Mr. Cutler asked the Cabinet to provide the requested copies immediately, "as it has now been over a month since Mr. Roberts' request." Also, Mr. Cutler asked Mr. McGee to "please advise whether the requests for proposals sent to Mr. Roberts earlier this month constitute all requests for proposals similar to those issued for work on the" previously referenced projects. In conclusion, Mr. Cutler advised that by "a copy of his letter to Attorney General Stumbo, the Building Trades Council" was appealing the failure of the Department to respond upon receipt of Mr. Roberts' request dated May 15, 2007, "and failure to provide all of the documents requested."
Upon receiving notification of Mr. Cutler's appeal from this office, Mr. McGee responded on behalf of the Finance Cabinet, indicating that Commissioner Abbott received a request from Mr. Roberts on May 15, 2007; the Cabinet "mailed a response to Mr. Roberts advising him that relevant agencies were in the process of filling his request" on May 23, 2007, and "provided most of the requested documents to Mr. Roberts" on June 8, 2007. By letter dated June 25, 2007, the Cabinet "advised Mr. Roberts that certain records were preliminary in nature and thus exempt from disclosure under K.R.S. 61.878(1)(i) and (j)." A copy of the aforementioned responses is attached to Mr. McGee's letter. 4
According to Mr. McGee, the records to which Ms. Pinson referred in the letter dated June 25, 2007, "consist of preliminary drafts, reports, correspondence, notes and other materials not indicating final agency action, which may be exempted from Open Records Act disclosure" under KRS 61.878(1)(i) and (j) as interpreted in
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983),
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982), and OAG 86-58. "Apparently, Mr. Cutler's letter and [the Cabinet's] letter dated June 25, 2007, crossed in the mail." To clarify, the documents in the possession of the Cabinet related to Kincaid Lake State Park and the Indoor Water Park at Kentucky Dam Village State Park are preliminary in nature "because the request for proposals (RFPs) for these projects are still being drafted and have never been released to the public. Discussions are ongoing among various Department of Parks' and Division of Real Properties' officials to determine the exact language, terms and conditions to be included in these RFPs." 5 Disclosure of these preliminary materials "would offer a competitive advantage to those parties with knowledge and access to these materials and would interfere with the Commonwealth's ability to carry out a competitive bid process. In sum, the Commonwealth's best interests would not be served by the publication of preliminary materials." Because records like those described are "tools which a public employee or officer uses in hammering out official action within the function of his office" and no final action has resulted, the Cabinet's position is consistent with governing authorities. OAG 78-626, p. 2.
As a public agency, the Cabinet must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) provides:
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.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the Cabinet's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). Noticeably absent from the Cabinet's initial response are both of these mandatory elements. Although the Cabinet received Mr. Roberts' request dated May 15, 2007, on May 18, 2007, and therefore its response dated May 23, 2007 (three business days later), is timely, the Cabinet merely indicated that it was "in the process of filling" the request and expected to fill it "within the next two weeks." To this extent, the Cabinet violated KRS 61.872(5). See 01-ORD-38 ("KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection" ).
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)," neither of which the Cabinet invoked here. 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5); 02-ORD-165. Said another way, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5 (Emphasis added). In sum, neither the initial nor the supplemental response of the Cabinet contains the specificity envisioned by KRS 61.880(1) and KRS 61.872(5).
When called upon to render a decision involving statutory interpretation, the limited function of this office is "to ascertain and give effect to the intent of the General Assembly" as reflected by the language employed.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). Our analysis of the substantive issue presented is necessarily guided by this fundamental principle as well as the legislative statement of policy codified at KRS 61.871,, 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," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Nevertheless, this office is also cognizant 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 . . . [those described at KRS 61.878(1)[(i) and (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 government confidentiality.
Beckham, supra, at 577-578; See also
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d at 6-8 (1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ).
Both the courts and this office have construed the language of KRS 61.878(1)(i) and (j), upon which the Cabinet relies in denying Mr. Roberts' request for the RFPs, in various contexts. See 02-ORD-86; 01-ORD-104; 00-ORD-98; 99-ORD-220; 97-ORD-183. Among those records excluded from the application of the Open Records Act are those listed at KRS 61.878(1):
(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.
In an early open records decision, the Attorney General observed:
Not every paper in the office a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2; 04-ORD-030. Guided by an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action.
Applying the cited exceptions to reports generated during the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Court of Appeals held:
It is the opinion of this Court that subsections [(i) and (j)] quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
. . . We do not find that the complaints are per se exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. . . .
City of Louisville, supra, at 659-660. (Emphasis supplied).
One year after City of Louisville, the Court reaffirmed its position in a case involving public access to complaints filed against licensed physicians with the Kentucky State Board of Medical Licensure, holding that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once the Board has taken final action relative to the complaint. Kentucky State Bd. of Medical Licensure, supra. Of particular relevance here, the Court again observed:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659.
Kentucky Bd. of Medical Licensure at 956. (Emphasis added). 6 Nine years passed before the courts revisited this issue in a published opinion. In
University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992), the Kentucky Supreme Court ratified 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." (Emphasis added). 97-ORD-168, p. 5.
In the intervening years, the Attorney General applied KRS 61.878(1)(i) and (j) in a line of decisions with this principle being the common thread among same. See OAG 89-69; OAG 88-25; OAG 84-98. Said another way, each of the cited decisions was premised on the following notion:
Predecisional and investigative documents which are incorporated by the agency into its final action forfeit their preliminary status and are therefore subject to inspection. . . . Records which are of a purely internal preliminary investigatory nature are exempt. . . . Records which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records.
97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11; see 04-ORD-162. Acknowledging that the Kentucky State Police had correctly summarized the rule of law set forth City of Louisville and its progeny, the Attorney General nevertheless concluded that the agency had interpreted "the rule too broadly," in 97-ORD-168. Id., p. 6. In so doing, this office observed:
The cases and opinions cited above establish that an internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. . . . The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken.
Id., pp. 6-7(emphasis added). In our view, this line of decisions is equally applicable on the facts presented though a contrary outcome is dictated. See, in particular, 97-ORD-168, pp. 2-7. See also 99-ORD-164.
Since the Cabinet has not completed the RFPs in question, it logically follows that any related materials have not been adopted as the basis for such action. See 01-ORD-83 and 01-ORD-47 (both of which reaffirm the validity of 97-ORD-168); 01-ORD-83 (which provided this office with an opportunity to distinguish between "adopt" and "incorporate" in clarifying when a preliminary document becomes open to public inspection) . Accordingly, those existing records which are potentially responsive to Mr. Roberts' request are properly characterized as preliminary; the Cabinet properly denied access on the bases of KRS 61.878(1)(i) and (j).
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 In relevant part, KRS 61.880(2)(c) provides:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation.
2 Although Mr. Roberts also wrote "to ascertain confirmation that the Department for Facilities and Support Services has issued the appropriate amendments to the Green River and General Burnside RFPs to comply with the statutory obligations of KRS 337.505 to 336.550 on these public works projects[,]" this does not constitute a request for public records; therefore, any related issues are not justiciable in this forum.
3 Since counsel for Mr. Roberts' organization subsequently clarified that his request was "for copies of requests for proposals," a critical distinction, and the Cabinet responded accordingly, our analysis proceeds on the assumption that Mr. Roberts was, in fact, asking for copies of the request(s) for proposals issued by the Department rather than "solicited proposals." (Emphasis added).
4 In the initial response dated May 23, 2007, Gwen R. Pinson, Executive Director, Office of General Counsel, advised Mr. Roberts that his request was received on May 18, 2007, and the Cabinet expected to "be able to fill the request within the next two weeks." On June 25, 2007, in "follow-up to the Cabinet's response," Ms. Pinson advised "that the above-referenced projects are still preliminary. No contracts have been awarded to date." Since "the contract awards for those projects are not yet complete," the Cabinet denied his request, citing KRS 61.878(1)(i) and (j) . In conclusion, Ms. Pinson advised Mr. Roberts that he "may request this information after the contracts have been awarded." Whether the requests for proposals have been completed is a different question from whether the contracts have been awarded though the former is necessarily a prerequisite of the latter. See 04-ORD-175 and 04-ORD-198 for the analysis employed by this office in determining whether bid proposals, or portions thereof, must be disclosed. On appeal, the Cabinet has clarified that requests for proposals, the records at issue, are still being drafted for the specified projects; our decision is premised on the accuracy of this assertion.
5 To the extent the Cabinet is asserting that no such records exist or have been created, the analysis contained in 05-ORD-108, pp. 5-8, is controlling; a public agency cannot produce for inspection or copying nonexistent records.
6 Quoting the trial court, the Court of Appeals concluded:
It would appear to this court and it is so held, that those documents defined in Subsections [(i)] and [(j)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under Subsection [(h)], unless exempted by other provisions of KRS 61.870 through KRS 61.884. Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [(i)] and [(j)] of the Act.
Id. at 956-957. (Emphasis added).