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 Department of Public Advocacy violated KRS 61.880(1) in failing to respond to James Potter's June 23, 2011, request to inspect the "work calendar or other documents that show the actual caseload of Carolyn Keeley, Esq., for the years of 2008, 2009, and 2010." DPA mooted the substantive issue on appeal by providing Mr. Potter with three documents captioned "Count of Cases Opened by Attorney for Date Range" reflecting Ms. Keeley's cases in circuit, district, family, and "other" courts for the designated years, and properly denied Mr. Potter access to Ms. Keeley's work calendar.
In correspondence directed to the Attorney General after Mr. Potter initiated this appeal, DPA advised that the enclosed "Count of Cases," which it also provided to Mr. Potter, "are the same business records upon which DPA relies in order to track the actual caseload count of Ms. Keeley." DPA asserted that it had "no claim of right" to Ms. Keeley's calendar since it was not "a DPA-issued work calendar" but one that she purchased herself and uses "for her own personal and business purposes." Mr. Potter subsequently contested DPA's claim, asserting that the "Count of Cases" "does not show when cases are completed, dropped, or carried over to the next year . . . [or] reflect the amount of court and travel time that would be required in the cases Ms. Keeley was handling . . . ." While Mr. Potter's position is well-taken, we are guided by clear precedent in concluding that Ms. Keeley's calendar, if indeed a public record, is shielded from disclosure by KRS 61.878(1)(i) and (j) as construed in Courier-Journal and Louisville Times Company v. Jones, 895 S.W.2d 6 (Ky. App. 1995) and 11-ORD-009.
DPA violated KRS 61.880(1) in failing to respond to Mr. Potter's June 23, 2011, request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
DPA offers no explanation for failing to respond in writing, and within three business days, to Mr. Potter's request. Its silence on this issue leads us to conclude that no defense exists for this omission. We urge DPA to review the referenced provision to insure that future open records requests are processed in a timely manner.
Turning to the substantive issue presented, we find that DPA mooted Mr. Potter's appeal 1 by fulfilling his request, albeit belatedly, with records that did not entirely meet his expectations. Mr. Potter requested the "work calendar or other documents that show the actual caseload of Carolyn Keeley, Esq., for the years of 2008, 2009, and 2010." (Emphasis added.) DPA provided him with "the same business records upon which DPA relies in order to track the actual caseload count of Ms. Keeley." It was required to do no more. While Ms. Keeley's calendar may contain additional information that Mr. Potter seeks, he requested it in the alternative, and not in addition to, "other documents" consisting of the "Count of Cases" with which he was provided.
Moreover, Kentucky's courts and this office have concluded that calendars maintained by public officials and employees are excluded from public inspection by KRS 61.878(1)(i) and (j). 2 In January 2011, the Attorney General addressed this issue in an appeal involving access to the calendar of the Fayette County Public Schools' superintendent. A copy of 11-ORD-009 is attached hereto and incorporated by reference. There, we affirmed the agency's denial of the request based on the holding in Courier-Journal and Louisville Times Co. v. Jones , above. 3 At page 2 of 11-ORD-009, we recognized that "[w]hile other jurisdictions have taken the opposite view [footnote omitted], 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 Jones , the court referenced an early open records opinion in which the Attorney General observed that "[m]any papers are simply work papers which are exempted because they are preliminary drafts and notes [and thus] . . . part of the tools which a public agency employee or officer uses in hammering out official action within the function of his office." Jones at 8 citing OAG 78-626. In 03-ORD-165, we expressly extended this analysis to the calendars of two employees of the Cabinet for Economic Development. Assuming, for the sake of argument, that Ms. Keeley's calendar is in fact a public record for open records purposes, 4 the analysis applies with equal force to it. 5 We therefore conclude that DPA's denial of Mr. Potter's request was fully supported by existing legal authority regardless of whether the disputed calendar was properly characterized as a public or non-public record. 6
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:
James PotterBrian Scott West
Footnotes
Footnotes
1 40 KAR 1:030 Section 6 states:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
2 KRS 61.878(1)(i) and (j) authorize nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
3 Compare 09-ORD-203 (declaring that Governor's published public appearance schedule "forfeits its preliminary characterization and becomes final on the day it is distributed by email or otherwise released").
4 We leave for another day the question of whether a calendar purchased with private funds but used to conduct the public's business constitutes a public record within the meaning of KRS 61.870(2).
5 In Jones , above at 9, the court focused on unique features of the Governor's calendar that might implicate "executive privilege," recognizing that the Governor's "[a]ccess to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence, are essential to effective governance in a representative democracy." In 11-ORD-009, we focused on unique features of the superintendent's calendar that might implicate the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) and its state counterpart, KRS 160.700, et seq. By the same token, notations appearing on the work calendar of a public defender may directly or indirectly reveal her mental impressions, conclusions, opinions, and legal theories and thus implicate CR 26.02(3)(a) as attorney work product. This would establish yet another basis for denying the public access to her calendar.
6 If Mr. Potter wishes to obtain records identifying Ms. Keeley's cases by case name, he may resubmit his request to DPA.