Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor violated the Open Records Act in the disposition of Mikel E. Fitch's October 22, 2009, request for copies of:
. the public appearance schedule of Kentucky Governor Steve Beshear for the time period October 22, 2009, to October 21, 2010;
. a current listing of the names which are on the distribution list for Governor Steve Beshear's public appearance schedule.
We find that the Governor's disposition of Mr. Fitch's request was procedurally deficient, but substantively correct.
Mr. Fitch's October 30, 2009, appeal to the Attorney General was precipitated by the failure of the Governor's Office to respond to his request. On November 2, 2009, the Attorney General issued notification of his appeal to that office, and on November 6, 2009, Deputy General Counsel Michael T. Alexander responded by providing Mr. Fitch with a copy of the Governor's public appearance schedule "for the time period between Monday, October 19, 2009, up to and including Sunday, November 8, 2009." Mr. Alexander also provided Mr. Fitch with a copy of the distribution list for the Governor's public appearance schedule, redacting "the personal email addresses of certain private citizens" under authority of KRS 61.878(1)(a) as construed in 07-ORD-120.
Those records, along with Mr. Alexander's response, having apparently failed to reach him, Mr. Fitch contacted this office by letter dated November 12, questioning the Governor's continued inaction. Upon request, an employee of this office read Mr. Alexander's response to Mr. Fitch over the telephone. Mr. Fitch challenged that response in his November 12 letter, noting that it was both untimely and unresponsive. With reference to the latter objection, he complained that the October 9, 2009, through November 8, 2009, public appearance schedule that was released did not correspond to the October 22, 2009, through October 21, 2010, public appearance schedule that he requested, and that the Governor's Office refused to add his name to the distribution list.
Shortly thereafter, Mr. Alexander amplified on the agency's position. Agreeing to mail another copy of the response to Mr. Fitch, Mr. Alexander explained that although it "was inadvertently misread . . .[,] there are no additional records in the Office of the Governor responsive to his request." Acknowledging that tentative schedules exist that are excluded from public inspection by KRS 61.878(1)(i) and (j), he denied Mr. Fitch's request for these "preliminary drafts." Additionally, he refused to honor his request for public appearance schedules created in the future, characterizing the latter as a "standing request."
In response to this office's KRS 61.880(2)(c) request for information, Mr. Alexander advised that the Governor's public appearance schedule is "considered final" and generally "distributed toward the end of the week," but suggested that, consistent with the holding in Courier-Journal and Louisville Times v. Jones, 895 S.W.2d 6 (Ky. App. 1995), the public appearance schedule is never truly final. He observed:
Without waiving any objections under the Open Records Act, and within his absolute right and discretion, the Governor periodically releases and distributes a public appearance schedule . . . [T]he focal point of controversy in this appeal surrounds Mr. Fitch's attempt to have his name placed on the email public appearance schedule distribution list. The Open Records Act does not speak to this issue . . . . [W]e are not obligated to honor Mr. Fitch's standing request for records . . . [and he is] required to follow the procedural requirements of the Open Records Act to obtain a copy of the . . . schedule.
While it is clear that the Governor's Office violated KRS 61.880(1) in responding to Mr. Fitch's request, it is equally clear that its belated response did not otherwise violate the Open Records Act.
The Governor's Office acknowledges the deficiencies in its disposition of Mr. Fitch's request. These admissions of error obviate the need for a lengthy recitation of the procedural requirements of the law. We are, nevertheless, obliged to note that any delay in responding to an open records request beyond three business days must be accompanied by a detailed explanation of the cause for delay and a statement of the earliest date on which the records will be available. KRS 61.872(5).
Turning to the substantive issues presented in this appeal, we find that the Governor's public appearance schedule forfeits its preliminary characterization and must be disclosed to the public, upon receipt of an open records request, on the day it is distributed. Further, we find that the public appearance schedule is a public record within the meaning of KRS 61.870(2), that access to the schedule is governed by the provisions of the Open Records Act, and that although the Governor's Office has elected to distribute the list to "media organizations, lobbying groups, political organizations, and private persons" on a voluntary basis, the Act authorizes the Office to "require written application, signed by the applicant and with his name printed legibly on the application," for copies of the schedules that have been distributed and that are therefore final. KRS 61.872(2). Finally, we find that the Governor's Office is not obligated to honor a standing request for schedules that will be generated in the future but do not yet exist.
The Governor's public appearance schedule forfeits its preliminary characterization and becomes final on the day it is distributed by email or otherwise released. We reject the argument that the schedule is never final because it is "subject to change." The exceptions upon which the Governor's Office relies in advancing this argument, KRS 61.878(1)(i) and (j), authorize nondisclosure of:
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 97-ORD-183, this office addressed a similar issue. We determined that a list of unclaimed property owners posted for public inspection by the Kentucky Treasurer at the Kentucky State Fair was neither a preliminary recommendation nor a preliminary memorandum in which opinions are expressed. We further determined that the list was obviously not correspondence with a private individual, a note, or a draft because it was "complete and accurate as of [the] date it was posted. " 97-ORD-183, p. 5. We rejected the argument that the list was preliminary because it might contain inaccuracies, reasoning that "[d]isclosure of public records under the Open Records Act does not constitute a guaranty of the accuracy of all information contained therein." 97-ORD-183, p. 5. Here, as in 97-ORD-183, the disputed record is sufficiently final in nature to be made public on the date it is distributed. We see no reason why it should thereafter be characterized as a preliminary record, and find the analogy the Governor's Office attempts to draw to his internal appointment ledger is unpersuasive. A public appearance schedule is, by its nature, an announcement to the public of events at which the Governor will be present, and which the public may attend. It is not "a notation for inter or intra office use so the daily affairs of the chief executive can be conducted with some semblance of orderliness . . ." beyond the scope of public scrutiny. Courier-Journal v. Jones at 10. We therefore find that the Governor's Office's reliance on KRS 61.878(1)(i) and (j) was misplaced.
Nevertheless, the public appearance schedule consists of "documentation . . . which [is] prepared, owned, used, in the possession of [and] retained by a public agency" and is therefore a public record pursuant to KRS 61.870(2). For this reason the Governor's Office may, pursuant to KRS 61.872(2), properly require any person seeking access to a final and nonexempt copy of the schedule to submit "a written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." Voluntary disclosure of the same record does not preclude the Governor's Office from exercising its authority under the Open Records Act. Selective disclosure is only prohibited amongst open records requesters. Thus, in an early open records decision the Attorney General recognized that "agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. " OAG 82-394, p. 5. In the same decision, we reasoned that the exceptions to public inspection:
must be enforced uniformly, or not at all. [An agency] may elect to enforce these exemptions . . ., but must do so with an even hand. It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.
OAG 82-394, p. 3; OAG 82-234; OAG 89-79; OAG 92-30; 95-ORD-9; 06-ORD-171. Mr. Fitch's challenge to the Governor's Office's practice of emailing the public appearance schedule to persons and organizations on the distribution list, and of excluding him from the email distribution list, is not cognizable under the Open Records Act. He may, however, obtain copies of the nonexempt schedules upon presentation of a properly framed open records request.
As noted, Mr. Fitch's request for public appearance schedules that have not yet been generated was improperly framed. The Attorney General has long recognized that:
'standing requests' for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused 'to issue a blanket release of documents to be used by the [agency] in futuro.' OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General 'has never recognized the validity of a standing request.' OAG 92-30. See also, 95-ORD-43 (holding that a 'standing request' for electronically stored records in the custody of the county clerk was procedurally deficient) ; compare, OAG 90-112, p. 3 (holding that a request for all 'automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period,' specifically identified the records sought, and must be honored) . 1 This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view that "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 94-ORD-128, p. 2. The logic of these decisions extends to the appeal before us. Because the right to inspect the public appearance schedule attaches only after the schedule has been prepared and finalized by the Governor's Office, Mr. Fitch's prospective request for records that do not yet exist need not be honored. We find no error in the Governor's Office's denial of that portion of his request.
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.
Mikel E. FitchMichael T. Alexander
Footnotes
Footnotes
1 The referenced decision was issued before KRS 189.635 was amended to limit public access to accident reports. The principle for which it is cited is not altered by these amendments.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -