Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Superintendent of the Fayette County Public Schools properly relied on
Courier-Journal and Louisville Times Company v. Jones, 895 S.W.2d 6 (Ky. App. 1995), affirming the Governor's refusal to disclose his appointment ledger on the basis of KRS 61.878(1)(i) and (j), in denying Brenda D. Allen's November 24, 2010, request for access to the Superintendent's "calendar 1 of all appointments beginning January 1, 2009, through November 22, 2010." The principle of stare decisis dictates the outcome of this appeal.
In his November 30, 2010, response to Ms. Allen's request, Superintendent Stu Silberman cited Courier Journal v. Jones, above, 05-ORD-018 and OAG 78-626, along with KRS 61.878(1)(i) and (j), 2 the exceptions to public inspection deemed applicable to the calendars of public officials in the referenced authorities. Shortly thereafter, Ms. Allen initiated this appeal arguing that the Jones opinion was distinguishable because the Superintendent's calendar is a scheduled record that cannot be casually discarded in the manner suggested by Jones and OAG 78-62. Instead, she maintained the calendar must be retained and made accessible for two years per the Public School District Records Retention Schedule approved by the Archives and Records Commission at Record Series L2019 and promulgated into regulation at 725 KAR 1:061(3)(c)14. Additionally, Ms. Allen argued that Jones is distinguishable because "issues of confidentiality" to be afforded the governor are "not a valid concern" for the superintendent of a public school district who, unlike the governor, "is not an elected or political official." It was her position that "disclosure of a name and date on his calendar does not disclose the topic of discussion or the political agenda of the individual meeting with the superintendent. "
While other jurisdictions have taken the opposite view, 3 Kentucky's courts have determined that a public official's calendar is "nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the [official] can be conducted with some semblance of orderliness; and all of which should be free from [public scrutiny]." Id. at 10. In so holding, the courts have referenced an early open records opinion of the Attorney General recognizing:
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. KRS 61.878(1)(g). Yellow pads can be filled with outlines, notes, drafts and doodling 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. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection. We believe that the Mayor's appointment calendar is of such a nature. Although the appointment calendar contains a record of activities and contacts by the Mayor, a record which his office will probably want to keep on file for sometime, we nevertheless believe that it is nothing more than a work paper, a preliminary draft, notebook or memorandum.
OAG 78-626, quoted in Jones, at p. 8.
We are not persuaded that the scheduling of the superintendent's calendar by the Archives and Records Commission pursuant to KRS 171.420(3) distinguishes the question in this appeal from the question before us in 93-ORD-25, the open records decision that culminated in Courier-Journal v. Jones, above. Referencing the court's analysis in
Times Mirror Company v. Superior Court of Sacramento, 53 Cal.3d 1325, 283 Cal. Rptr. 893, 813 P.2d 240 (1991), in 93-ORD-25 we observed:
This Office has recognized that KRS 61.878(1)[(i)] and [(j)] are intended to insure the integrity of an agency's decision-making process by protecting its pre-decisional documents. OAG 91-108. The purpose underlying these exceptions may thus be analogized to the purpose underlying the exception to the California Public Records Act which was deemed to authorize nondisclosure of the Governor's appointment calendar in Times Mirror Co., above. Here, as in Times Mirror Co., disclosure of the Governor's schedule would jeopardize the decision-making process by inhibiting access to divergent opinions and by restricting the free exchange of ideas. To compel disclosure in this instance would be tantamount to depriving the Governor of one of the essential "tools" he uses "in hammering out official action." OAG 78-616, at p. 2.
It was this analysis, and not the fact that the governor's calendar was or was not a scheduled record, that governed our decision the Court of Appeals affirmed in Jones. Indeed, this office has recognized on more than one occasion that unscheduled records "should be retained by the agency until a retention schedule is established for them." 04-ORD-040, p. 5; 07-ORD-182; 08-ORD-049. Under this line of reasoning, if the governor's calendar was unscheduled 4 it could no more be casually discarded than the superintendent's scheduled calendar. The analysis in Jones is therefore entirely apropos to the facts of this appeal.
Nor are we persuaded that "issues of confidentiality" are not a "valid concern for the superintendent" and that Jones is, thus, distinguishable. In addition to reaffirming our position on access to the governor's calendar in 93-ORD-36 and 05-ORD-018, 5 this office extended the Jones analysis to the calendar of a cabinet secretary in 05-ORD-145. At page 6 of that decision we reasoned that the secretary "possesse[d] sufficient authority to develop and implement policy" to justify extension of the holding in Jones to his calendar. As "the executive agent of the board" of education, 6 responsible for "preparing" and "carrying into effect" all bylaws, rules, regulations, and policies of the board and the schools in the district, the superintendent's role relative to the district is analogous to that of governor's to the Commonwealth, as reflected in Jones, or the mayor's to the city, as reflected in OAG 78-626. Indeed, the broad scope of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g), and its state counterpart, KRS 160.700, et seq., raises additional "issues of confidentiality" for the superintendent when meetings concerning individual students occur. In sum, there is no reasonable basis for distinguishing between the superintendent's calendar and the governor's calendar. Accordingly, we find that the Superintendent of the Fayette County Public Schools did not violate the Open Records Act in denying Ms. Allen's request for access to his appointment calendar.
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 In 05-ORD-018, this office considered the subtle differences between an appointment ledger, schedule, calendar, and itinerary, ultimately concluding that the terms are largely interchangeable. In this decision, we employ the term "calendar" to describe any such record.
2 The Open Records Act was amended in 1994 and the exceptions renumbered. KRS 61.878(1)(i) and (j) were formerly codified as KRS 61.878(1)(h) and (i). This recodification affected no substantive change in the language of the exceptions.
3 See, e.g., Office of the Governor v. Washington Post Company, 360 Md. 520, 759 A.2d 249 (2000) (declaring that governor's scheduling records were generally not exempt except for items identifying entirely personal meetings and family engagements).
4 The governor's schedule is, in fact, a scheduled record that must be permanently retained. See Governor's Office Retention Schedule Series 04365, 04366, and 04367.
5 Compare 09-ORD-203 (dealing with a governor's public appearance schedule and the public's right of access thereto).
6 KRS 160.370.