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 Department of Education violated the Open Records Act in partially denying Paducah Sun reporter Bill Bartleman's June 14, 2007, request for copies of "the Graves County Board of Education's proposed Facilities Plan and correspondence (letters, email, and other) KDE has received and sent regarding the proposed plan . . . includ[ing] but . . . not limited to correspondence from/to KDE officials, Graves County officials, Graves County residents, and others." For the reasons that follow, we find that DOE discharged its statutory duties under the Act by releasing 222 documents to Mr. Bartleman and citing the exception authorizing the partial redaction of an additional 10 documents. However, we question whether DOE's reliance on that exception was not, in those instances described below, misplaced, and conclude that existing legal authority does not support nondisclosure in those instances.
In its June 22, 2007, response to Mr. Bartleman's request, DOE advised that "portions of some emails dated February 23, February 27, April 10, May 23, and May 31, 2007, have been redacted as they contain preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended pursuant to KRS 61.878(1)(j)." On appeal, Mr. Bartleman challenges DOE's position. Acknowledging that he has "no way of knowing what was said in the redacted messages," he nevertheless expresses "doubt[] that any of the information was preliminary . . . [insofar as i]t appears comments were in response to questions regarding construction plans in the Grave County school system [and a]ll of the other records indicate that responses were related to existing policy and procedures."
In supplemental correspondence directed to this office following commencement of Mr. Bartleman's appeal, DOE amplified on its position. On behalf of DOE, Assistant General Counsel Kevin C. Brown explained that the 10 pages "were partially redacted because the pages contained communication that consisted of preliminary recommendations and preliminary memoranda between KDE and KBE representatives . . . [in] sequential electronic mail communications and chain replies. " Mr. Brown hastened to note that "[b]ecause the email strings also contained documentation of final agency action, correspondence, or decisions, only the portions of the emails containing preliminary discussion was redacted. " Mr. Brown then generally described the redacted materials, arguing that the preliminary nature of the materials was evidenced by the use of words like "I think . . .," "we should . . .," "please verify . . .," "probably . . .," "I recommend the following reply . . .," and "draft a reply, " as well as by the fact that individuals were referred to other KDE staff members and that draft responses were generated upon request. In sum, Mr. Brown, asserted:
The redactions made to Mr. Bartleman's Open Records Request response were intended to protect the integrity of KDE's internal decision-making process. When citizens ask tough questions in writing via email, it is necessary for the agency to solicit the free exchange of opinions and recommendations from knowledgeable staff before the agency renders a final response.
Conceding that the "redacted information contains nothing out of the ordinary," he nevertheless maintained that the information "is preliminary and . . . represents candid dialogue that would otherwise be chilled if required to be produced under an open records request."
While the weight of existing legal authority supports the view that intra-agency emails exchanged by public agency employees and officials, consisting of preliminary discussions that are not adopted as the basis of final action, qualify for exclusion from public inspection under authority of KRS 61.878(1)(j), we question the propriety of DOE's invocation of this exception in relation to the first sentence of the third full paragraph of Kevin Noland's February 23 email to May Ann Miller and copied to Lisa Gross and Mark Ryles, the February 19, 20, and April 10 emails exchanged by Kevin Noland, Mark Ryles, and Keith Travis, and the April 10 emails exchanged by Mark Ryles and Kevin Noland.
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.
In denying Mr. Bartleman access to the disputed emails, DOE did not invoke KRS 61.878(1)(i) authorizing nondisclosure of "a tentative version, sketch, or outline of a formal and final written product," 07-ORD-108, p. 6, but instead characterized the February 20 recommended reply and April 10 draft response as preliminary recommendations and preliminary memoranda. Our in camera review of those records, per KRS 61.880(2)(c), does not confirm the presence of recommendation, opinion, or policy formulation, but instead confirms the presence of a fact-based account of the issues to which they relate. So, too, our review of the February 23, 2007, email from Kevin Noland to Mary Ann Miller, and copied to Lisa Gross and Mark Ryles, confirms the presence of two statements of fact, as opposed to recommendation, expression of opinion or policy formulation, in the first and second sentences of the third full paragraph.
In a recent decision issued by this office, the Attorney General rejected the University of Louisville's argument that records relating to the University's decision to discontinue Dr. Steve Henry's participation in its gratis faculty program enjoyed protection under KRS 61.878(1)(i) and (j). With reference to the University's invocation of the later exception, we observed:
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.
07-ORD-108, p. 6, 7. We believe that these decisions are dispositive of the issue on appeal. Because the referenced emails, or portions of emails, consist of fact, rather than recommendation, opinion, or policy formulation, they do not enjoy protection under KRS 61.878(1)(j).
Assuming, arguendo, that DOE had invoked KRS 61.878(1)(i) to shield from disclosure the February 20 recommended reply and the April 10 draft response, we believe that the protection afforded these emails as "a tentative version, sketch, or outline of a formal and final written product" was forfeited if the recommended reply and draft response were in fact issued as the final written product. Accord, 07-ORD-147, p. 12 (final statements mirrored written notes on which they were based and for which exemption was improperly claimed). Moreover, we can think of no basis on which DOE could be said to have properly withheld the referenced factual statements in the February 23 email.
Nevertheless, we affirm DOE's partial denial of Mr. Bartleman's request on the basis of KRS 61.878(1)(j). The remaining emails were properly characterized by DOE as "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " These electronic records enjoy the same protection as hard copy records containing such communications under a line of decisions dating back to 2000 as well as a recent decision of the Kentucky Court of Appeals. In
Baker v. Jones, Ky. App., 199 S.W.3d 749, 752 (Ky. App. 2006), the court recognized that "emails which were exchanged between the mayor and the city council members were preliminary discussions involving what course of action should be taken in regard to a controversy . . . [and] [therefore] preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . [which] were not subject to disclosure. "
In 05-ORD-280, this office analyzed a series of recent decisions dealing with access to interagency email communications, contrasting the "conversational-type communications" at issue in 05-ORD-144, which were deemed to be "of a transitory nature, devoid of meaningful value to the agency" and consisting of "neither drafts, notes, or correspondence with private individuals, nor subjective expressions of opinion . . . [or] recommendation" with the emails at issue in 05-ORD-210 and 05-ORD-221. In the latter decisions, we affirmed, in part or in whole, agency denial of access to emails containing recommendations and opinions, concluding that the emails fell squarely within the parameters of KRS 61.878(1)(j). A copy of 05-ORD-280 is attached hereto and incorporated by reference.
Our review of the disputed emails largely confirms DOE's position that they consist, almost entirely, of interagency communications in which opinions are expressed and policies formulated or recommended. We find no error in DOE's decision to withhold the remaining emails, under the cited exception, as preliminary "tools which a public employee or officer uses in hammering out official action within the function of his office" rather than the official and final action itself.
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.
Bill Bartleman, Reporter
Kevin C. BrownAssistant General CounselDepartment of EducationCapital Plaza Tower500 Mero StreetFrankfort, KY 40601