Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Owensboro Municipal Utilities violated the Open Records Act in denying John Bickel's July 25, 2008, request for copies of:
. The report of Navigant Consulting on the organizational changes [at OMU] approved in the July 17, 2008, meeting of the Utility Commission;
. All documents utilized by the Commission in reaching its decision to authorize organizational changes in OMU's structure authorized in the July 18, 2008, meeting. 1
For the reasons that follow, we find that OMU improperly withheld those documents submitted to this office, in response to our KRS 61.880(2)(c) request, 2 that are designated "Group C" and are characterized as "[t]he only document from Navigant Consulting that was a part of the basis for OMU's official decision to approve 22 new positions [and] included as part of OMU's management recommendation. " We affirm OMU's characterization of the remaining records in dispute as preliminary drafts and its denial of Mr. Bickel's request for these records on the basis of KRS 61.878(1)(i) and (j).
In a response dated July 30, 2008, Utility Commission counsel Patrick D. Pace reminded Mr. Bickel "of the orders that have been issued by the [United States District Court in the present litigation between Mr. Bickel's client, Kentucky Utilities, the City of Owensboro, and the City's Utility Commission, 3 that included] a cut-off for all discovery of April 15, 2008, . . . [and] a [May 29, 2007] protective order precluding KU from pursuing discovery regarding any plans that the Plaintiffs may have after termination of the Contract [with KU]." Mr. Pace relied on 06-ORD-137 to support his position that "a party to litigation may not utilize the Open Records Act to circumvent discovery orders in pending litigation, " asserting that Mr. Bickel's requests "are in conflict with the orders of the Court." Mr. Pace also invoked KRS 61.878(1)(i) and (j) in support of his denial, advising Mr. Bickel that the requested records consist of "preliminary drafts, notes, and correspondence with private individuals, as well as preliminary recommendations in [sic] preliminary memoranda in which opinions are expressed or policies recommended, but on which no final action has been taken by the Utilities Commission."
On appeal, Mr. Bickel, through his counsel Sheryl G. Snyder, argued that the Commission "failed to carry its burden of proving that its denial of Mr. Bickel's request is authorized by any of the statutory exceptions when strictly construed . . . ." With reference to the pending litigation, Mr. Snyder explained:
[T]he Magistrate Judge entered a protective order that certain discovery KU sought . . . was not relevant to the claims or defenses of the parties to that litigation within the scope of civil discovery under Fed. R. Civ. P. 26. Thus, the order precludes KU from taking discovery in the case of "information regarding [OMU's] plans for the purchase of backup power and the sale of excess power after May 16, 2010."
Because the court determined that the information KU sought was not relevant to the litigation, Mr. Snyder argued, OMU "cannot invoke the Open Records Act litigation exception . . . ." In support, he cited Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860 (Ky. App. 2001), Wyrick v. Department of Revenue, 2008 Ky. App. Lexis 169 (Ky. App. May 30, 2008), and 95-ORD-18.
Mr. Snyder also disputed OMU's reliance on KRS 61.878(1)(i) and (j), asserting that "[t]he requested records concern decisions that have been officially finalized." He characterized Mr. Bickel's request for "[t]he report of Navigant Consulting on the organizational changes approved in the July 17, 2008, meeting of the Utility Commission," as facially non-preliminary, noting that "it was part of the basis for the official decision of the Utility Commission to approve adding 22 positions at OMU . . . ." So, too, Mr. Snyder argued, was Mr. Bickel's request for "documents utilized by the Commission in reaching its decision to authorize organizational changes in OMU's structure authorized in the July 18, 2008, meeting." In support, he cited University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992), 04-ORD-125, and 04-ORD-83.
In supplemental correspondence directed to this office following commencement of Mr. Snyder's appeal on behalf of Mr. Bickel, OMU counsel Michael D. Risley amplified on his client's position. Mr. Risley's chief argument was predicated on KRS 61.878(1) and the existence of the protective order precluding KU from obtaining through discovery "information regarding [OMU's] plans for the purchase of back-up power and the sale of excess power after May 16, 2010," the very information, he concluded, KU now seeks through the Open Records Act. It was his position that the language of KRS 61.878(1), as construed in 06-ORD-137, supports OMU's denial of Mr. Bickel's request.
Mr. Risley also elaborated on his client's reliance on KRS 61.878(1)(i) and (j), acknowledging that OMU had "received some preliminary documents from Navigant Consulting, at the time of the request," but asserted that "as of today, OMU has not received a final report from Navigant Consulting." In subsequent correspondence, Mr. Risley maintained:
While certain of the Commission's actions may be final, that does not mean the Commission had received a final report from the consultant. In fact, it had not . . . . [O]nly those portions of the draft report actually considered by the Commission in taking final action should be subject to inspection.
He concluded that OMU could not provide a copy of the final report because none exists.
Unable to resolve this dispute on the record before us, this office requested additional information, and a copy of all records responsive to Mr. Bickel's request, from OMU on September 12, 2008. 4 In response, OMU agreed to release records that had previously been in dispute, 5 and advised us that:
At the time of Mr. Bickel's request, Navigant Consulting had only given to OMU its preliminary analysis and some preliminary documents. Navigant Consulting's draft recommendations were revised once prior to the recommendation to the . . . Commission and before Mr. Bickel made his request. They have been revised again since Mr. Bickel's request, and are not yet final.
Mr. Risley restated his earlier position relative to the Navigant Consulting document that was part of the basis for OMU's decision to approve 22 new positions, designating these documents as "Group C." Mr. Risley designated the remaining responsive records as "Group A," and reasserted his position that the latter records continued to enjoy protection under KRS 61.878(1)(i) and (j) and KRS 61.878(1). We agree with Mr. Risley that the records contained in Group A enjoy protection under KRS 61.878(1)(i), but find that the records contained in Group C forfeited their preliminary characterization when they were adopted as part of the basis of OMU's decision to approve 22 new positions. 6
In 00-ORD-139, and again in 00-ORD-195, 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). Copies of those decisions are attached hereto and incorporated by reference. In particular, we refer the parties to the discussions found at pages 5 through 11 of 00-ORD-139, and pages 4 through 9 of 00-ORD-195. Critical to our analysis in these decisions 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, 895 S.W.2d 6, 8 (Ky. App. 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). We adhere to precedent where it is so clearly controlling.
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. 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; accord, 00-ORD-197 (affirming Louisville Free Public Library's denial of a request for a draft report prepared by an outside consultant) ; 05-ORD-048 (affirming Kentucky High School Athletic Association's denial of a request for a nonfinal report).
Our examination of the records contained in "Group A" supports OMU's position. Although we cannot disclose its contents, "Group A" can generally be described as a series of draft documents containing preliminary analysis on a range of topics relating to organizational structure and human resource planning that extend beyond the hiring of 22 new employees and that have not yet been acted upon. Indeed, those documents have twice been revised. Clearly, the records contained in "Group A" represent a "work in progress" protected from premature disclosure by KRS 61.878(1)(i) and (j). Conversely, the records contained in "Group C" forfeited their preliminary characterization when they were adopted as part of the basis for OMU's decision to approve 22 new positions. This position, too, is consistent with a line of authority dating back to 1982 upon which 00-ORD-139 and 00-ORD-195 were premised. 7 We therefore conclude that OMU's reliance on KRS 61.878(1)(i) and (j) to support nondisclosure of the records contained in "Group C" was misplaced.
Resolution of the issues presented in this appeal turns on the application of KRS 61.878(1)(i) and (j) to the requested records. We make no determination on the application of the protective orders to those records. The parties to this appeal have argued each side of the relevance question in the two forums in which that question was raised, and we are chary of being drawn into this dispute. 8 Instead, we find that OMU improperly relied on KRS 61.878(1)(i) and (j) in withholding the records that comprise "Group C," but properly relied on these exceptions in withholding the remaining responsive records that comprise "Group A."
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. Bickel also requested the OMU annual budget submitted to the Commission for approval at its June 2008 meeting and minutes of all Commission meetings conducted in June and July 2008. Although the agency initially denied these requests, OMU released these records to Mr. Bickel on September 30, 2008. Because these records were "made available to the complaining party after [his] complaint [was] made, the Attorney General . . . decline[s] to issue a decision" as to the propriety of OMU's initial denial of this portion of Mr. Bickel's request. 40 KAR 1:030 Section 6.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. 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. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 City of Owensboro, Kentucky, et al. v. Kentucky Utilities Company, Case No. 4:04 CV-00087 (W. D. Ky.).
4 Pursuant to KRS 61.880(2)(c), we acknowledged our obligation to maintain the confidentiality of these records.
5 See note 1, above.
6 Group B consists of records documenting the relationship between the City, OMU, and Navigant Consulting. We requested these records to enhance our understanding of Navigant's role in this matter, and they are not at issue in this appeal.
7 See, City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982);Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville times, above; Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).
8 We do, however, note that 06-ORD-137 is distinguishable on its facts from the instant appeal insofar as the protective order in the underlying litigation from which that open records appeal arose precluded all discovery pending submission of dispositive motions. The protective order here precluded disclosure of information deemed "not relevant."