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 Cabinet for Economic Development violated the Open Records Act in partially denying State Journal staff writer Paul Glasser's request for e-mails related to Governor Steve Beshear's economic development trip to Japan in June 2008. For the reasons that follow, we conclude that the Cabinet for Economic Development properly denied the request for copies of the e-mails related to the Governor's itineraries under authority of KRS 61.878(1)(i) and (j) and Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6 (Ky. App. 1995), hereinafter "Courier-Journal v. Jones." We further find that a small category of e-mails are not properly characterized as drafts and notes and do not qualify for exclusion under the cited exemptions.
On June 18, 2008, Mr. Glasser submitted an open records request to the Cabinet requesting copies of the following records:
? I am requesting copies of any and all records, including but not limited to receipts and vouchers, held by the Cabinet for Economic Development related to the expenses and itinerary for Gov. Steve Beshear's economic development trip to Japan in June 2008. Expenses include, but are not limited to, hotels, limousines, taxis, airfare, entertainment, sightseeing, tips and gratuities for each member of the delegation and spouses, if applicable.
I am also requesting copies of e-mails, notes or letters and other correspondence between and/or among the Cabinet for Economic Development and the Kentucky Far East Trade Office in Tokyo, Japan concerning, mentioning or related to the June 2008 economic development trip to Japan.
I am also requesting copies of any and all records for operating expenses and salaries of the staff of the Kentucky Far East Trade Office in Tokyo, Japan.
On June 18, 2008, Catherine C. Staib, Assistant General Counsel, responded to Mr. Glasser's request on behalf of the Cabinet, advising:
We will not have documentation regarding the expenses for individuals from our Cabinet until travel vouchers are filed. At that time, I will forward all the vouchers and supporting documentation to you for members of CED who participated. If the expenses of other members of the delegation are processed through the Cabinet, I will also furnish that information to you. Otherwise you will need to contact the Governor's Office and the State Police for that information.
The Far East Office operates on a personal service contract from which expenses and salaries are taken. I will be happy to provide the contract to you, as well as any supporting documentation. But I will need to know the time frame for your request.
In subsequent correspondence, Ms. Staib advised Mr. Glasser that the e-mails were coming in to her and there were around 300 e-mails, most of which were preliminary internal memoranda planning the trip, and would be exempt from production, but that she read them all and determined which were exempt and not exempt and would provide him with a formal response, including the specific exemption references for exempt material. She further asked him if it was possible to narrow his request.
In response, Mr. Glasser narrowed his request, but later renewed his request for copies of all the e-mails, which were not exempt.
By letter dated July 23, 2008, Ms. Staib provided Mr. Glasser with a response to his request, advising:
This letter is written in response to your open records request to the Cabinet for Economic Development. Specifically, you renewed your request for all e-mail related to the Governor's Far East trip, without limitation.
I have again reviewed all e-mail from/to this Cabinet related to the trip. Enclosed you will find documents that were not exempted under the Kentucky Open Records Act. The remaining documents were preliminary in nature, trip planning, and staff memos containing opinions. These documents (e-mail and e-mail attachments) are exempt from production under KRS 61.878(1)(i) and (j), which exempt preliminary documents, drafts, and staff memos expressing opinions and correspondence, are not notice of final agency action. See also, Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995).
Shortly thereafter, Mr. Glasser initiated the instant appeal contending that the Cabinet's justification was insufficient to block the release of almost the entire collection.
After receipt of notification of the appeal, Ms. Staib provided this office with a response to the issues raised in the appeal. In her response, she provided the following background:
June 8 - 14, Governor Steve Beshear and a group of state officials, including three officials from the Cabinet of Economic Development, traveled to Japan on an economic development trip. While in Japan, the party met with various governmental and industry representatives and attended a meeting of the Japanese Business Advisory Council to Kentucky (JABACK).
Planning for this trip took several months and was accomplished primarily among staff from the Governor's Office, the Cabinet for Economic Development, and the Cabinet's Far East representative, Jiro Hashimoto. Many of the discussions in planning this trip, including airline reservations, meetings, and the itinerary were part of e-mail correspondence. The overwhelmingly majority of this correspondence was preliminary planning for the trip and changes in those plans as they were refined and developed.
In her response, Ms. Staib explained the process the Cabinet had taken in preparing its response to Mr. Glasser's request, advising:
In preparing the Cabinet response to Mr. Glasser's e-mail/ correspondence request, the affected Cabinet employees were requested to forward any correspondence to me that might satisfy Mr. Glasser's request. This resulted in approximately 300 e-mails forwarded from them to me that had to be reviewed individually. There were no documents other than e-mails related to Mr. Glasser's request.
However, this does not mean there were 300 separate e-mails that each were responsive to Mr. Glasser's request. Many of the e-mails were duplicates that were forwarded to me by multiple recipients. Many were part of an e-mail chain in which I received each link in the chain separately. The majority did not include Mr. Hashimoto as part of the correspondence and, therefore, were not responsive to Mr. Glasser's request. Although all had to be reviewed, there were not 300 e-mails responsive to Mr. Glasser's request.
Again citing KRS 61.878(1)(i) and (j) and Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995), as authority for withholding the e-mails at issue, Ms. Staib reiterated the preliminary nature of the records withheld from disclosure, stating:
By the very nature of Mr. Glasser's request for documents involved with the June 2008 trip to Japan, the correspondence requested involved the planning for the trip and various permutations of the proposed itinerary for that trip. Planning documents are preliminary and subject to change and alteration. They contain opinions of employees and are not notice of final action of an agency. In some cases they might not even represent a final decision for the day they were written. Almost every one of the germane e-mail fell within the parameters of the cited statutory exceptions and the Jones case. Those that did not, were provided to Mr. Glasser.
(Emphasis in original.)
Pursuant to KRS 61.880(2)(c) and to facilitate our review of the issue on appeal, we requested the Cabinet to provide this office with a copy of records at issue for in camera inspection. In providing the records for our review, Ms. Staib, in a cover letter, advised that receipts, vouchers, etc. relating to the expense of the trip had been provided to Mr. Glasser earlier and are not the subject of his appeal.
As directed by KRS 61.880(2)(c), we cannot disclose the contents of these records. However, we can provide a general description of the records in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record. Our in camera review confirms that the overwhelming majority of the e-mails at issue are, as described by the Cabinet in its supplemental response, "preliminary planning for the trip and changes in those plans as they were refined and developed," and did not reflect final agency action. Many involved preliminary discussions, recommendations, and opinions concerning the itinerary and schedules, and include multiple changing drafts of the itinerary as it evolved. Our review also confirmed the Cabinet's assertion that there were not 300 separate e-mails, as many were duplicates that were forwarded to Ms. Staib by multiple recipients or were part of an e-mail chain in which she received each link in the chain separately.
We agree with the Cabinet's analysis and reliance upon Courier Journal v. Jones and KRS 61.878(1)(i) and (j) in withholding access to copies of the e-mails relating to the Governor's itineraries on the economic development trip and find that the agency's denial of the request did not violate the Open Records Act.
This office, and the courts, have recognized that a public official's appointment schedule and appointment calendars may be excluded from public inspection pursuant to KRS 61.878(1)(i). OAG 78-626; 05-ORD-018; Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6 (Ky. App. 1995). In Courier-Journal v. Jones, the Court of Appeals concluded that an appointment schedule is "nothing more than a draft of what may or may never take place; a notation for inter or intra office use . . . ," and thus exempt pursuant to KRS 61.878(1)(i). In OAG 78-626, this office held that the Mayor of Louisville's appointment calendar could properly be withheld from disclosure under authority of what is now codified as KRS 61.878(1)(i). In 05-ORD-018, we held that the Office of the Governor properly relied upon KRS 61.878(1)(i) and (j), as construed in Courier-Journal v. Jones, in denying the Courier-Journal' s requests for the travel itineraries for the Governor's trade mission to Europe. In reaching that conclusion, we held that an itinerary was functionally the equivalent to the ledgers, calendars, and/or schedules adjudged exempt from public inspection by the Kentucky Court of Appeals in Courier-Journal v. Jones. In discussing the court's decision, we stated:
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, 873 S.W.2d 575, 578 (Ky. 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. "
For the same reasons, set forth in Courier-Journal v. Jones, 05-ORD-018, OAG 78-626, we find that the preliminary records that form the basis of those documents can be withheld. Accordingly, we conclude the Cabinet properly relied upon KRS 61.878(1)(i) and (j) in withholding access to the e-mails relating to the Governor's itineraries and schedules on the economic development trip. As described by the Cabinet in its responses, these documents were preliminary in nature and the overwhelming majority constitute "preliminary planning for the trip and changes in those plans as they were refined and developed," and did not reflect final agency action. In our view, they are preliminary drafts, notes, and memoranda containing opinions and recommendations that are part of the "tools" that public employees used in "hammering out" the Governor's itineraries and schedule for the Japan trip and were properly excluded from disclosure. OAG 78-626, p.8.
However, our review of the records withheld revealed a small category of records that are not properly characterized as drafts and notes and do not qualify for exclusion under the cited exemptions. Records such as the photographs, bios of the Governor and the Kentucky delegation, and records of the final gifts taken to Japan, if they have not already been disclosed, should be made available for inspection.
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. "