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 Kentucky State Board of Licensure for Professional Engineers and Land Surveyors violated the Open Records Act in denying John A. Harrison's January 8, 2010, request for a copy of "the proposed revisions to the Minimum Technical Standards for Surveying as developed by the MTS Task Force. " Although the record on appeal suggests that the Board may have misconstrued Mr. Harrison's request, we find that because the revised standards, in their most recent iteration, synthesize recommendations discussed at public meetings, they do not constitute protected communications. The record of those discussions, regardless of whether it is created by the Task Force or by Board staff acting as its administrative arm, is not excluded from inspection by KRS 61.878(1)(i) or (j). Further, the Board cannot plausibly deny the existence of a responsive record unless it construes Mr. Harrison's request as a request for a "completed version" of the standards.
In its January 12 response to Mr. Harrison's request, the Board indicated that it was "unable to furnish [Mr. Harrison] with the requested document since it does not exist at this time, and the work that does exist is exempted under KRS 61.878(1)(i) or (j)." The Board explained that the Task Force "has not approved any final version and it remains a work in progress with the Board staff presently reviewing the standards at the request of the Surveying Committee of the Board."
Shortly thereafter Mr. Harrison initiated this appeal noting that the Task Force had, in the past year, electronically disseminated updated versions of the reviewed KAR standards showing revisions from the prior meetings in advance of the upcoming meeting. He further indicated that the updated versions were disseminated to all voting members of the Task Force as well as the nonvoting invitees from the surveying community, including himself. He questioned how "a public document for nearly a year . . . [could] suddenly become one that is nonpublic." In support, Mr. Harrison provided this office with copies of two email messages from Task Force Chairman Dennis Smith to the members and invitees that were accompanied by the "MST Document Draft language."
In supplemental correspondence directed to this office, the Board disputed Mr. Harrison's allegations asserting that "there is no Task Force document presently updated to reflect all past proposed changes." The Board acknowledged the existence of a seven person task force whose members have "been meeting approximately monthly for the last year or so to review and update the regulation that sets out the minimum standards for some types of surveys in Kentucky," and whose meetings are open to the public. The Board maintained that the only records disseminated to Task Force members in advance of the monthly meetings consist of the meeting agenda and minutes of the last meeting. Continuing, the Board observed:
The Task Force itself has never produced any document with the proposed changes, and the Board staff, at the direction of the Surveying Committee of the Board, is currently working to create such a document but it remains a work in progress.
It was the Board's position that "the only document that has incorporated any changes was done by Board staff in September 2009, sent to the Task Force chairman, and forwarded to the chairman to all members of the Task Force including Mr. Harrison in October 2009."
Because we do not construe Mr. Harrison's request as a request for a "comprehensive document incorporating proposed changes," but as a request for the proposed revisions to the surveying standards to date, because the record on appeal confirms that the standards, reflecting proposed revisions to date, are regularly discussed in open, public meetings and because the standards have been disseminated on one or more occasion to Task Force members and invitees, the Board cannot persuasively argue that no responsive record exists and that such proposed revisions as do exist are excluded from public inspection by KRS 61.878(1)(i) and (j).
The record on appeal contains a glaring factual dispute. Mr. Harrison maintains that proposed revisions to the standards discussed at past meetings were regularly disseminated to Task Force members and invitees prior to the Task Force's next meeting. As noted, the Board acknowledges that in October 2009, the chairman of the Task Force forwarded a document reflecting revisions to date to all members and invitees, but characterizes Mr. Harrison's position as "patently false." Because resolution of this appeal does not turn on prior dissemination of the proposed revisions, but instead on the fact that the revisions were discussed in a public forum and reduced to writing, we need not address this factual dispute. We find no support in the Open Records Law for the proposition that matters discussed in past open meetings, and later memorialized by agency staff for discussion at future open meetings, qualify for protection under KRS 61.878(1)(i) or (j).
The courts and this office have devoted considerable time and energy to interpreting KRS 61.878(1)(i) and (j). These provisions authorize the 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[.]
See, e.g., City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 1992). In an early open records opinion, this office generally observed:
Not every paper in the office of 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.
In recent years, we have closely analyzed the language of these exemptions and the rationales that support them. Thus, in 97-ORD-183 we dissected KRS 61.878(1)(i):
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . . ." [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] 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, 94-ORD-38, and 00-ORD-195.
97-ORD-183, p. 4. In OAG 88-85, we examined the language and underlying rationale of KRS 61.878(1)(j), observing:
[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. KRS 61.878(1)(j) is thus "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.
The purposes supporting these exemptions are not served when the recommendations made and tentative versions proposed are discussed at an open, public meeting and represent the Task Force consensus. Regardless of whether they are ultimately adopted by Board staff, the Surveying Committee of the Board, or the Board itself, the proposed revisions cannot be characterized as protected communications because they are aired in a public forum. To hold otherwise would promote secrecy in the face of the Open Meetings Law.
By way of contrast, in 08-ORD-098 the Attorney General affirmed this Board's denial of a request for records relating to, or generated by, an investigative review committee on the basis of KRS 61.878(1)(i) and (j). The record on appeal in 08-ORD-098 confirmed that the three member committee was comprised of the Board's executive director and two members of the Board "whose identities [were] not known to each other," who "function[ed] independently of each other," and whose "sole purpose [was] to assist the executive director. " The latter, in turn, never "adopt[ed] the notes or recommendations of any member of the committee." The record on appeal was devoid of any evidence that the committee members met and discussed in an open, public meeting the investigative matters with which they were charged. To the extent no final action had been taken in the matters under investigation, we held that notes and recommendations of the committee members, which were internally exchanged and were not publicly discussed, enjoyed protection under the cited exemptions. Nondisclosure of these records arguably promoted the rationale underlying KRS 61.878(1)(i) and (j) by facilitating frankness and candor in internal communications exchanged by each of the members and the executive director.
This process stands in sharp contrast to the process by which the Task Force conducts its business. All recommendations relating to the standards are discussed in open meetings, and the tentative versions proposed and recommendations made represent a group consensus. The fact that those recommendations are only later reduced to writing, and that that work is proceeding, does not alter our analysis. No purpose is served by asserting confidentiality relative to matters publicly discussed. We therefore find the Board's denial of Mr. Harrison's request constituted a violation of the Open Records Act.
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.
John A. Harrison, PLSB. David CoxJonathan Doran Buckley