Request By:
Carmen Maxson
Paul F. Royce
Anne E. Burnham
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services-Office of Vital Statistics violated the Kentucky Open Records Act in partially denying Carmen Maxson's request for "copies of all records and notes that I turned over to Christina Stewart, Admin. Branch Man[a]ger, upon my retirement, regarding the Kentucky.gov, parent company NIC, proposal to provide OVS with a credit card ordering system," as well as "updated progress reports, documents, and the Statement of Work that has been signed by the [CHFS]" and "a copy of the RFP that was presented to the Finance Cabinet for the credit card ordering system that was submitted at the first part of 2008, and denied, and a copy of the last contract between OVS and VitalCheck Network." Because OVS ultimately provided Ms. Maxson with a copy of the requested contract and the cancelled RFP, and has agreed to provide her with a copy of the Statement of Work upon receipt of payment, any related issues are moot per 40 KAR 1:030, Section 6. Insofar as the preliminary "notes" and "updated progress reports" (preliminary memoranda) have not been adopted as a basis of any final action, OVS properly denied access in accordance with KRS 61.878(1)(i) and (j), respectively.
In a timely written response, Paul F. Royce, Kentucky State Registrar, advised Ms. Maxson that her written request was "denied in part and granted in part." To the extent she was asking for notes, progress reports, and other documents contained in the file, a review of the documents revealed "that they are still preliminary in that no final agency action has been taken thereupon. Rather, such records contain your mental impressions and are exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)." Likewise, OVS denied access to the Statement of Work as the document had "been signed by members of the [CHFS]," but until such time as it "is approved by the Finance and Administration Cabinet, [it is] a preliminary record and is exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)." That being said, Mr. Royce advised that Ms. Maxson's request for the contract between OVS and VitalCheck was granted; however, the agency was reviewing the documents in order to "redact any proprietary information" and OVS anticipated that same would be available on or before September 20, 2008. Likewise, those documents responsive to Ms. Maxson's request "for the cancelled RFP, to the extent that any exist, are in storage and, once any responsive records have been retrieved, copies will be prepared and you will be notified" on or before September 20, 2008.
By letter dated September 16, 2008, Ms. Maxson initiated this appeal, noting that in addition to her notes, the file contained, upon her departure, "official minutes from our weekly meeting[s] regarding the credit card ordering system, as well as official updates on the weekly status of the project, that were distributed by Kathy Doyle, Project Manager, to all attendees in the meetings." With regard to the status of the Statement of Work, Ms. Maxson asserts that Cindy Stoops of CHFS Procurement advised her that "the work that had taken place, before my departure, should not have been performed before that SOW was signed, so if that is the case, then that would lead me to believe all of the preliminary work was done illegally." In addressing the existence of the cancelled RFP, Ms. Maxson observes that a copy "should be in the file that I gave to Ms. Stewart or in the possession of Ms. Stewart or Jennifer Franklin, Q & A Supervisor, so I know that it exists." As of September 26, 2008, the date of her supplemental correspondence, Ms. Maxson had not received the Statement of Work or the RFP.
Upon receiving notification of Ms. Maxson's appeal from this office, Assistant Counsel Anne E. Burnham responded on behalf of the CHFS-OVS, initially reiterating that the "notes within the file consisted of Ms. Maxson's personal impressions and recommendations for action. Furthermore, no final agency action has been taken based upon Ms. Maxson's recommendations within those notes." For this reason, OVS denied Ms. Maxson access to her personal notes in accordance with KRS 61.878(1)(i) and (j). Although Ms. Maxson made the notes "during the course and scope of her employment with the [CHFS], such are the property of the [CHFS] and are exempt from disclosure as personal notes." In addressing Ms. Maxson's contention regarding the minutes of meetings regarding the project, Ms. Burnham clarifies that "the meetings were not open meetings, they were internal meetings of a branch about a particular project. 1 While the 'file' may contain status reports regarding a project, such are likewise exempt from disclosure pursuant to KRS 61.878(1)(i) and (j) in that such memoranda contain expressions of the drafter" which have not been adopted as the basis for any final action. Copies of the minutes "may have been handed out to meeting attendees"; however, "that fact is not dispositive of the matter. The nature of the document itself is dispositive. And, unless and until the agency takes final action based upon the memoranda at issue, such memoranda are preliminary."
With regard to Ms. Maxson's request for the Statement of Work, the CHFS "has decided to provide Ms. Maxson a copy of same upon payment of $ 5.40 (54 pages @ $ 0.10 per page). If Ms. Maxson wishes for these records to be mailed to her, the [CHFS] requests that she remit an additional $ 2.19 for postage." 2 According to Ms. Burnham, a copy of "the cancelled RFP and the most recent contract between the [CHFS] and VitalCheck" were provided to Ms. Maxson on Friday, October 3, 2008, via hand-delivery. Because OVS has agreed to provide Ms. Maxson with the Statement of Work upon receipt of payment, and has already provided her with a copy of the cancelled RFP and the most recent contract between the CHFS and VitalCheck, any related issues are now moot per 40 KAR 1:030, Section 6, pursuant to which: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. That being said, the remaining question is whether OVS properly withheld the notes and status or "updated progress" reports in dispute on the bases of KRS 61.878(1)(i) and (j), respectively. Because the records are properly characterized as preliminary notes, and preliminary memoranda in which opinions are expressed or policies formulated or recommended, none of which have been adopted as a basis for any final action, the agency's denial is affirmed consistent with governing precedents.
In resolving the question presented, our analysis is guided by the legislative statement of policy codified at KRS 61.871, declaring 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," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, 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 . . . "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. " 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 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 an evolving body of case law, the Attorney General has long recognized that public records which are preliminary forfeit having exempt status only upon being adopted by the agency as a basis for its final action.
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982);
Kentucky State Bd. of Medical Licensure v. The Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983);
University of Kentucky v. The Courier-Journal and Louisville Times Company, Ky., 830 S.W.3d 373 (1992). 04-ORD-187; 00-ORD-194; 98-ORD-140; 93-ORD-125. Each of the cited decisions is premised upon the following:
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.
With respect to the underlying rationale of KRS 61.878(1)(i) and (j), the Attorney General has recognized: "KRS 61.878(1)[(i) and (j)] have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies." 93-ORD-125, p. 4. As evidenced by a review of the relevant authorities, that rationale is deemed "equally compelling regardless of whether the communications are within an agency or between agencies." Id. In our view, the analysis contained in 08-ORD-098 relative to KRS 61.878(1)(i) and (j) is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference.
Early on, the Attorney General observed the following when construing KRS 61.878(1)(i):
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. This office has also consistently recognized that a "note" is a "brief record, esp. one written down to aid the memory." Id . at 951; 97-ORD-183, p. 4; 04-ORD-125. Said another way, a "note" is "created as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting." 97-ORD-183, p. 4 (citations omitted). 3
Here, the "notes" in dispute cannot properly be characterized as either drafts or correspondence nor does OVS make that contention; however, Ms. Maxson does not dispute that any responsive "notes" were "created as an aid to memory or as the basis for a fuller statement," as, for example, are conventional notations taken at a meeting. 97-ORD-183, p. 4; 93-ORD-67, p. 9 (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). Because the record is devoid of evidence to refute the assertion that none of the notes implicated have been adopted as a basis for any final action, this office finds that OVS properly withheld the preliminary notes on the basis of KRS 61.878(1)(i); likewise, the weekly status reports are properly characterized as "[p]reliminary recommendations, and preliminary memoranda" within the meaning of KRS 61.878(1)(j), and retain preliminary status unless and until adopted as a basis for the agency's final action regarding the project.
In addressing the underlying purpose of KRS 61.878(1)(j) specifically, this office has consistently recognized:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4. In other words, KRS 61.878(1)(j) is "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. Based upon the evidence presented, this office finds that nondisclosure of the status reports in dispute, or preliminary memoranda which "contain expressions of the drafter," but have not been adopted as a basis for any final action, serves the underlying purpose of KRS 61.878(1)(j); the denial is affirmed.
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 Prior decisions of this office validate Ms. Burnham's characterization of the meetings in question and her view of the resulting legal implications. See 00-OMD-141 and 98-OMD-64 for the relevant analysis; a copy of each decision is attached hereto and incorporated by reference.
2 Requiring advance payment of a reasonable copying fee, as well as postage when appropriate, is consistent with KRS 61.874(1) and (3).
3 A "draft" is defined as "a preliminary version of a plan, document, or picture." The American Heritage College Dictionary 495 (4th ed. 2002). 97-ORD-183, p. 4. In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " Id., p. 2. Clearly, this exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125.