Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Adair County Hospital District Board of Directors violated provisions of KRS 61.870 to 61.884 in denying Adair County Community Voice Editor Sharon Burton's May 10, 2011, request for copies of "[a]ll documents presented during the Board's March 29, 2011, meeting pertaining to a discussion that took place with representatives from Spectrum Health Partners, LLC." 1 The Board acknowledged the existence of only one document responsive to Ms. Burton's request, "the 84-page Spectrum document itself," and invoked KRS 61.878(1)(i) and (j) as the bases for denying her access. Although it acknowledged approval of the Spectrum proposal summarizing the recommendations contained in the report, it was the Board's position that it had taken "no final action with respect to the recommendations and opinions expressed in the 84-page Spectrum document, so the document has not yet lost its protection under KRS 61.878(1)(i) and (j))." The Board equated final action with implementation of that action and the execution of a contract binding the parties, focusing on principles of contract law as opposed to open records law. Because the Open Records law does not recognize any difference between a final decision and the implementation of that final decision, we find that the Board's reliance on KRS 61.878(1)(i) and (j) was misplaced.
On appeal, Ms. Burton asserts that the 84-page report "was referenced during the hospital's board meeting on April 26, 2011, at which time the board retained Spectrum Health Partners, LLC, as interim management . . . to fully implement improvements identified in the report." The report, she maintains, thereafter forfeited its preliminary character. The Board refutes this claim, noting that although it "approved the Spectrum proposal in its April 26 meeting, Spectrum has not yet implemented recommendations contained in the report. Nor is there a binding contract between the Board and Spectrum at this time." Citing
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983), inter alia, the Board argues that finality occurs in the decision-making process when "(1) the decision is unalterable; and (2) the decision creates legal obligations between one or more parties." In subsequent correspondence, the Board acknowledges its contractual agreement with Spectrum "to conduct the report" and "an interim CEO agreement between Spectrum and the Hospital," but again emphasizes the absence of "a binding contract between Spectrum and the Board to fully implement the April 19 proposal . . . and the recommendations in the Spectrum report."
Resolution of the issue presented in this appeal does not turn on the existence or nonexistence of a contract between Spectrum and the Board to implement the recommendations in the proposal and the report, but on the Board's approval of the proposal and report. The Board makes no meaningful attempt to distinguish the proposal from the report, and we can discern none other than in the degree of detail and consequent length of the latter. In our view, the Board's "approval" of the proposal and report constituted its final action in this matter. Like the proposal, the report no longer enjoyed protection from disclosure after April 26, notwithstanding the fact that a contract with Spectrum had not been executed and the recommendations approved had not been implemented.
We are aware of no legal authority recognizing, implicitly or explicitly, that final action occurs only when a contract binding the parties to the course of approved action is executed and the action approved is fully implemented, thereby creating "legal obligations between one or more parties." The Board's arguments are grounded in contract law rather than open records law. Whatever may occur in the period following the Board's final action approving the recommendations contained in the proposal and report, and the implementation of those recommendations under a legally binding contract, KRS 61.878(1)(i) and (j) ceased to protect the proposal and report when the Board "voted in favor of the Spectrum's [sic] proposal . . ." and the motion adopting the proposal carried. Any attempt to superimpose principles of contract law on an open records analysis under KRS 61.878(1)(i) and (j) unnecessarily forestalls the public's right to know. Just as an agency budget is final when approved, not when expenditures are made, or disciplinary action is final when imposed, not when it is carried out, the disputed proposal and report were final when approved, not when the recommendations they contained are fully realized. We reject the legally unsupportable distinction drawn by the Board between final action and implementation of final action.
Accordingly, we find that the Adair County Hospital District Board of Directors violated the Open Records Act in denying The Adair County Community Voice's request for the 84-page report prepared by Spectrum Health Partners, LLC. Inasmuch as the Board cites no other exception to the Act, and advances no other argument supporting nondisclosure of all or any portion of the report, we believe it has no "right to withhold statutory [sic] exempt portions of the report" in the face of this decision.
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.
Distributed to:
Sharon BurtonRichard L. BrownJunis L. Baldon
Footnotes
Footnotes
1 The Board explained that it contracted with Spectrum "to conduct an analysis of the Hospital's service and management after members of the Hospital's executive management team resigned last year. The product of the analysis is the report at issue here."