Request By:
William R. Erwin
Robert Rowland
H. Vincent Pennington, III
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Danville Independent Schools relative to William R. Erwin's requests of February 29, 2008, and March 5, 2008, for a copy of "the Cultural Audit performed on the Bate Middle School" and other school records, violated the Open Records Act. For the reasons that follow, we find that the agency properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Erwin's requests.
By letter dated March 4, 2008, H. Vincent Pennington, III, Counsel for Danville Independent Schools, timely responded to Mr. Erwin's February 29, 2008, request, advising in relevant part:
The Bate Middle School Cultural Assessment is exempt from production at this time under the provisions of KRS 61.878(1)(i) and KRS 61.878(1)(j). This document does not record or reflect a final decision of a public agency but constitutes a preliminary draft and contains "preliminary recommendations, and preliminary memoranda in which opinions are expressed or formulated or recommended. " As you know, the report has not even been presented to the faculty of Bate Middle School at this time. For these reasons, we decline to produce the document.
By letter dated March 5, 2008, Mr. Erwin submitted another request to the Danville Independent Schools, asking for the following:
1. Copies of any and all preliminary reports and final reports, referred to as a "Cultural Assessment", performed of Bate Middle School.
2. Any and all documents you have in your possession concerning 703 KAR 5:120, section 5(2) that you have sent to other school districts concerning [when a school is classified as a Level 3 school and student transfers] . . . .
3. Copies of any scholastic audits performed on Bate Middle School pursuant to 703 KAR 5:120 for the years 2000 to the present.
4. Copies of the culture assessments performed on the Danville High School and Jennie Rogers Elementary School by the KDE in the past two years.
5. Copy of the contract between Jerry Meade, Ruth Hatterick, and the Danville Board of Education to perform the Cultural Audit of Bate Middle School.
By letter dated March 10, 2008, Mr. Pennington responded to Mr. Erwin's March 5, 2008, request, answering each request in the order presented, as follows, in relevant part:
Response to request no. 1 : . . . This appears to be the same request that you made in your correspondence to Mr. Rowland dated February 29, 2008, which was denied in my correspondence to you dated March 4, 2008. As stated in that letter, the Bate Middle School Cultural Assessment is exempt from production at this time under provisions of both KRS 61.878(1)(i) and KRS 61.878(1)(j). This document does not record or reflect a final decision of a public agency but rather constitutes a preliminary draft and contains "preliminary recommendations, and preliminary memoranda in which opinions are expressed or formulated or recommended. " A culture audit is nothing more than a non-scientific snapshot of the culture and environment of a school created for the purpose of identifying areas on which the staff and administration might focus to enhance the learning environment of the school. Furthermore, as you know, the report has not even been presented to the faculty of Bate Middle School at this time. For these reasons -- as well as the reasons discussed at length below in response to your fourth request -- we decline to produce the document.
Response to request no. 2 : Your request appears to be based on an assumption that Bate Middle School is classified as a "Level 3 school" as described in 703 KAR 5:120, Section 5(2). However, Bate Middle School is not now, and never has been, classified as a Level 3 school, which is a classification under the CATS Accountability System. For that matter, Bate Middle School has never been classified as a Level 1 school or Level 2 school, as it has performed at or above the state average each and every year since the current CATS Accountability System was initiated in 1999 - 2000. It is possible that you are confusing the fact that the Danville Independent School District is classified as a Tier III district for purposes of the No Child Left Behind Act, which has absolutely nothing to do with issues discussed in 703 KAR 5:120. Accordingly, the provisions of 703 KAR 5:120 do not apply to Bate Middle School, or any other school in the Danville Independent School District. Not only does the school not possess any documents responsive to your second request, the regulation is thus inapplicable to the Danville Independent School District, and your conclusion that the parents of Bate Middle School students have the right to transfer their children to a different school or school district is erroneous.
Response to request no. 3 : . . . For the reasons described in the preceding paragraph, the school district is not required to have scholastic audits performed at Bate Middle School and no such audits have been performed.
Response to request no. 4 : . . . Like the Bate Middle School "Culture Assessment," these audits [cultural assessments on Danville High School and Jennie Rogers Elementary] are exempt from production under both KRS 61.878(1)(i) and (j) because they constitute nothing more that preliminary evaluations and recommendations for which no final agency action has occurred.
?
From our telephone conversation last week, I know you believe that the culture assessments lose their exemption from production under KRS 61.878(1)(i) and (j) once the preparer has finalized the report and formally presented it to the school district. I do not believe this is the case, unless and until the school district incorporates a given culture assessment in some final decision or action. That is, if the culture assessment is part of a long-term evaluation of a school or school district in general, then it remains exempt from production . . . .
?
For the foregoing reason, the school district declines to produce the Danville High School and Jennie Rogers Culture Assessment at this time. The school district simply believes, as the Kentucky Attorney General has noted, that it must have the benefit of full and frank internal discussion and the benefit of the preliminary recommendations and reports of third-party consultants to improve the school district.
Response to request no. 5 : Finally, your fifth request is for a copy of the contract between Jerry Meade, Ruth Hatterick, and the Danville Board of Education to perform the Cultural Audit of Bate Middle School. There is no written contract between these parties or any other parties relating to the recent culture assessment of Bate Middle School.
Shortly thereafter, Mr. Erwin initiated an appeal to this office challenging the Danville Independent School's denial of his requests.
After receipt of notification of the appeal, Mr. Pennington provided this office with a response to the issues raised in the appeal. Elaborating on the agency's initial responses, he provided additional background information and supporting law, explaining in relevant part:
In 2006, the Danville Independent School District was determined to be a Tier III, Year 1 school district under the No Child Left Behind Act. As a result of this classification, various offers of assistance were made to the school district. One of those offers was to engage a Volunteer Partnership Assistance Team (VPAT) to study the various schools in the school district and to offer recommendations that the school board might consider to improve the learning environment for its students. The VPAT team was comprised of four individuals: a representative from the Kentucky School Boards Association; a highly-skilled educator under KRS 158.172; a Department of Education Achievement Gap Coordinator; and a representative from the Kentucky Association of School Superintendants.
The VPAT team recommended that the school district consider having "culture audits" made in regard to various schools within the district. A culture audit is nothing more than a nonscientific snapshot of the culture and environment of a school created for the purpose of identifying areas on which the staff and administration might focus to enhance the learning environment of the school; thus the report can be seen as being part of an on-going process to improve the district. The Kentucky Department of Education provides school districts with "audit teams" for these culture audits, but they apparently have a significant backlog of pending matters and could not perform the cultural audit for Bate Middle School within the timeframe desired by the school district. Accordingly, the school administration arranged for a team of individuals who previously performed these culture audits on behalf of the Kentucky Department of Education to visit the Bate Middle School; to meet with parents, teachers and administrators; and to offer non-binding recommendations as to how the learning environment of Bate Middle School might be improved.
The team performing the cultural audit for Bate Middle School prepared a first draft of the document in February 2008. When Mr. Erwin filed his initial open records request on February 29, 2008, the culture report had not been presented to the faculty of Bate Middle School, the Bate Middle School site-based council, or to the board of the school district. In fact, the school board still has not considered the report in a school board meeting or otherwise taken any action (and certainly not final action) based on the audit report.
?
Mr. Erwin's first request in his letter dated March 5, 2008, is for "Copies of any and all preliminary reports and final reports, referred to as a "Cultural Assessment", performed of Bate Middle School." Obviously, the school district is not required to produce any preliminary reports, drafts or other documents of a preliminary nature pursuant to KRS 61.878(1)(i), aside from correspondence that is intended to give notice of final action of a public agency; thus, the school district is not required to provide Mr. Erwin with any of the auditor's notes or draft copies of the Bate Middle School Culture Audit.
More fundamentally, however, the Danville Independent Schools have taken no final action on the basis of the Bate Middle School Culture Audit. Mr. Erwin's appeal appears to be predicated on a belief that the Bate Middle School Culture Audit is now final either (a) because it was presented to the Bate Middle School faculty on March 11, 2008; or (b) because the audit team arguably has finished its work. The Kentucky Attorney General considered -- and rejected -- precisely this argument in 05-ORD-048, which is discussed at length in my March 10, 2008, correspondence to Mr. Erwin. In 05-ORD-048, the Attorney General stated: We also reject [the appellant's] assertion that the record cannot be characterized as "preliminary" because "there is no indication that Coopers & Lybrand intends to do any further work on the report. . . ." In OAG 90-97, we observed that the fact that the recommendations made, or memoranda prepared, are final as to the person making or preparing them is irrelevant. Most recommendations and memoranda are final in the sense that the person making or preparing them does not intend to make or prepare subsequent recommendations or memoranda. "The word 'preliminary' as used in KRS 61.878(1)[(j)] obviously refers to recommendations made [and memoranda prepared] by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation [or memorandum] is the first, second or last recommendation [or memorandum] if the state agency has not yet taken final action ." (emphasis added).
We find that the Danville Independent Schools properly denied the request for Cultural Audit and related documents that contained opinions and recommendations not yet adopted into final agency action, on the basis of KRS 61.878(1)(i) and (j). These exceptions authorize 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; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 00-ORD-139 this office reaffirmed its longstanding position on the issue of premature access to preliminary documents that fall within the parameters of KRS 61.878(1)(i) and (j). In particular, we refer the parties to the discussion found at pages 5 through 11 of 00-ORD-139. Critical to our analysis in this decision was the recognition that although the Open Records Act "exhibits a general bias favoring disclosure,"
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), "the concept of governmental confidentiality has not been totally diluted by the . . . Act,"
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that from the exclusions to public inspection codified at KRS 61.878(1)(i) through (j), "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, 873 S.W.2d 575, 577-578 (Ky. 1994).
In 00-ORD-139, the disputed document consisted of a report, submitted to Sanitation District No. 1 by an outside consultant, containing "preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated and recommended concerning proposed rate increases the Board of Directors of Sanitation District No. 1 may wish to implement," 00-ORD-139, p. 1, which retained its preliminary characterization pursuant to KRS 61.878(1)(j) "until that report was evaluated, discussed, and approved by the District." 00-ORD-139, p. 12. "For good or ill," we noted at page 12 of the decision, "the Open Records Act does not require that a public record be disclosed while the public 'might still be able to influence the decision-making process.'"
In 00-ORD-195, the disputed document consisted of salary and job evaluation data compiled for Eastern Kentucky University by an outside consultant and submitted for review and comment. An in camera examination of the documents demonstrated "that the collection of data [was] still in progress and undergoing revision, and that [the consultant] ha[d] not yet reached the stage at which recommendations [would] be made, opinions expressed, and policies formulated and recommended. " 00-ORD-195, p. 8. We characterized the document as "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" that were excluded from inspection by KRS 61.878(1)(i). 00-ORD-195, p. 8, citing 97-ORD-183, p. 4. Noting that the university had expressly denied that any final agency action had been based on the draft report, we opined:
The fact that the materials submitted to date may have been referred to in one or more public forums . . . does not alter our conclusion inasmuch as this act, standing alone, does not signify formal adoption of a draft report.
00-ORD-195, p. 9;
In 96-ORD-121, at p. 2, recognizing that the Attorney General had "repeatedly recognized the propriety of withholding documents containing preliminary recommendations and memoranda submitted to school boards under KRS 61.878(1)(j), until such time as they are acted upon and adopted by the board," we held that a study prepared by an outside consultant hired by the Hardin County Schools examining the organizational and pay structure of administrators, classified staff, and teachers was properly withheld as preliminary under KRS 61.878(1)(j), accord, 05-ORD-048.
We have reviewed a copy of the Bate Middle School Cultural Audit at issue in this appeal and find that it consists of opinions, findings, and recommendations related to the faculty, staff, students, and the school community. 1 As Mr. Pennington explained in his response, a "culture audit is nothing more than a non-scientific snapshot of the culture and environment of a school created for the purpose of identifying areas on which the staff and administration might focus to enhance the learning environment of the school" and that "the report can be seen as being part of an on-going process to improve the district," and, at the time of Mr. Erwin's requests, no final action on the basis of the Bate Middle School Culture Audit had been taken. Although the cultural audit may be final, in and of itself, it still remains a preliminary document containing opinions and recommendations that the public agency could consider, and remains exempt under KRS 61.878(1)(j), until the agency takes final action and adopts the cultural audit as part of its final agency action. 01-ORD-87.
For the same reasons, we find that the agency properly denied the request for the audits [cultural assessments] on Danville High School and Jennie Rogers Elementary, under authority of KRS 61.878(1)(i) and (j), as no final agency action had been taken on those audits.
In addition, we find that the agency properly denied Mr. Erwin's request for copies of any and all preliminary drafts of the cultural assessment or to the auditor's notes or draft copies of the Bate Middle School Audit, under authority of KRS 61.878(1)(i), as these note or drafts are preliminary records and not intended to give notice of final action of the public agency. 00-ORD-195.
Addressing Mr. Erwin's requests for records concerning 703 KAR 5:120, 5(2); scholastic audits performed on Bate Middle School; and copy of the contract between Jerry Meade, Ruth Hatterick, and the Danville Board of Education to perform the Cultural Audit of Bate Middle School, the agency affirmatively advised Mr. Erwin that these records did not exist and, as noted above in its response, provided an explanation as to why these records did not exist. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Danville Independent Schools discharged its duty under the Open Records Act by affirmatively so advising and providing a credible explanation for the nonexistence of such records. 07-ORD-243.
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 Mr. Erwin, in a March 26, 2008, reply to this office advised that he had been given a copy of the audit by a parent, not on the site-based council, and attached a copy of the audit for our review.