Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Shelby County Board of Education violated the Kentucky Open Records Act in denying the August 12, 2011, and November 3, 2011, requests of Steven L. Doyle, Editor of The Sentinel-News , for "copies of any and all materials pertaining to the reports compiled on the multi-purpose filed at Martha Layne Collins High School, including but not limited to the independent report filed by Vector Engineering and the report filed by project contractor Whittenberg Construction," and "copies of any and all correspondence, reports, memoranda, and E-mails between the [Board] and the contractors and the engineering firm who are evaluating the failed multipurpose field at Martha Layne Collins High School," respectively. The Board has confirmed that no agreement has been reached or "memorialized by a change order recommended by the project architect and executed by the owner and contractor or by a stand-alone contract for repair work. " In other words, no final action has been taken, and the records in dispute thus retain their preliminary status. The reasoning contained in 02-ORD-13, relied upon by the Board in response to Mr. Doyle's November 3 request, and on appeal, is directly on point.
Citing 08-ORD-108, Superintendent James Neihof denied the first request, correctly observing that "reports solicited from and prepared by third-party consultants" may be withheld as preliminary recommendations or memoranda under KRS 61.878(1)(j), until such time as the public agency takes final action based on those preliminary reports. Superintendent Neihof explained that the "School District solicited a report by Vector Engineering and separately requested the General Contractor, Whittenberg Construction, to provide a statement of opinion on the cause of certain issues relating to the multi-purpose field." These reports, he advised, "while they have been received, have not yet been presented to the Board of Education for consideration of taking any action regarding the multi-purpose field, and have not yet been incorporated into any final action taken by the School District." 1 For this reason, he concluded, "these reports contain preliminary opinions and recommendations and are being withheld pursuant to KRS 61.878(1)(j)."
In response to Mr. Doyle's refined November 3 request, Superintendent Neihof again denied access, quoting extensively from 02-ORD-13, and explaining that the current situation "is nearly identical to the circumstances described" therein. Specifically, he noted that in 02-ORD-13 (p. 6), as in this case, "'the owner and its [architect] felt there may be potential construction issues; investigation occurred and opinions were formed; the contractor was given the opportunity to conduct its investigation and present its opinions; [and] a resolution between the parties will eventually be memorialized' through a change order or other agreement, but this final determination of the resolution has not yet occurred." In 02-ORD-13, Superintendent Neihof correctly observed, "the OAG held that records relating to the administrative investigation of issues relating to a construction project, including reports and correspondence generated by the agency, consultants, and contractors, were all properly withheld until final agency action is taken." Because "[a]ll of the documents encompassed in your request contain preliminary opinions and recommendations relating to an ongoing investigation and negotiation relating to problems with the multipurpose field at [MLCHS]," he continued, the documents "are being withheld pursuant to KRS 61.878(1)(j) as preliminary."
Noting that "[t]hese documents were summarized in a public forum, involve the potential spending of hundreds of thousands of dollars of the public's money and address the repair of a dangerous problem with the facility that could" 2 result in "public liability," Mr. Doyle initiated this appeal by letter of December 2, 2011. Mr. Doyle enclosed articles from the newspaper "that were published on Nov. 4 and Nov. 16," in which Superintendent Neihof "referred to an agreement with officials from Whittenberg to begin repairing the field." Although his points are well-taken, and the harm that would result from disclosure of such records cannot be readily ascertained, the fact remains that a careful review of 02-ORD-13 validates the agency's position regarding application of KRS 61.878(1)(j) and the instant appeal presents no justification to depart from this governing precedent notwithstanding these valid policy arguments.
"Despite its manifest intention to enact a disclosure statute," the Kentucky Supreme Court has observed, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). See
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of these statutory exceptions in various contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156; 08-ORD-098; 11-ORD-108. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. City of Louisville , above, the seminal case on this issue, and its progeny, including the subsequent line of opinions/ decisions by this office, are controlling on the facts presented. See 97-ORD-168, pp. 2-7. Compare 01-ORD-47; 01-ORD-83. Because any existing responsive documents consist of preliminary recommendations, or preliminary memoranda in which opinions are expressed or policies formulated or recommended, none of which has been adopted as a basis for any final action by the Board inasmuch as none has been taken, such documents retain their preliminary status and were properly withheld under KRS 61.878(1)(j).
Upon receiving notification of Mr. Doyle's appeal from this office, Grant R. Chenoweth, whose firm provides legal services to the Board "under an 'as needed' contract," elaborated upon the agency's position. Significantly, Mr. Chenoweth advised that Whittenberg's "agreement" to remain involved in the field repair work "does not constitute any final agreement between the School District and [it] regarding the causation of any problem(s) with the field, the appropriate method for remedying any problem(s) with the field, who will undertake to perform needed remedial work or who will be responsible for the cost of the remedial work." Rather, "negotiations and discussions remain ongoing and neither a contract nor a change order" has been executed between the parties, he explained, that would "give any indication of a final agreement on the repair work. " Any departure from the specifications outlined in the original contract "will require a change order or a separate agreement." In sum, "the status of this project is entirely consistent with the project" at issue in 02-ORD-13. This office agrees.
A review of 02-ORD-13 validates the Board's assertion regarding its applicability on the facts presented. In that decision, the Attorney General upheld the denial by Murray State University of a request for public records "detailing the cause and cost of construction delays at the Regional Postsecondary Education Center in Hopkinsville, including the document(s) halting any or all construction" as well as those "detailing the nature of, cost of and responsibility for remedies approved to resume or continue construction, including the document(s) authorizing construction to resume or continue." MSU explained on appeal that "the owner and its consultant felt there may be potential construction issues; investigation occurred and opinions were formed; the contractor was given the opportunity to conduct its investigation and present its opinions . . . ." 02-ORD-13, p. 6. The Board correctly noted on appeal that in 02-ORD-13 the Attorney General ultimately determined that "lack of any change order executed by the parties to memorialize the resolution of the issues between the contractor and the agency and the expression by the University that no final agreement had been reached between the agency and the contractor" justified the agency's reliance on KRS 61.878(1)(j) as the basis for denial.
This office finds that 02-ORD-13 is controlling on the question of whether the Board properly denied Mr. Doyle's request on the basis of KRS 61.878(1)(j). A copy of that decision is attached hereto and incorporated by reference. Specifically, the Attorney General held:
[T]he University properly denied access to records preliminary to any final agency action, either as to final action on its administrative investigation of issues relating to the construction project or to a final change order to the construction contract. KRS 61.878(1)(j); 99-ORD-13. This would include records addressing concurrent construction issues at the Center and reports and correspondence generated by the University, consultants, and contractors over potential construction issues; investigations and opinions formed; the contractor's investigation and opinions.
02-ORD-13, p. 8. As noted above, any records that are ultimately adopted, in whole or in part, as the basis of any final action by the agency, or constitute final action, will forfeit their preliminary status consistent with existing law applying KRS 61.878(1)(j). Id.
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:
Steven L. DoyleJames NeihofNathan RiggsGrant R. Chenoweth
Footnotes
Footnotes
1 To clarify, in 01-ORD-83, this office rejected the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, noting that "adopt" is not synonymous with "incorporate," and "the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." Id., pp. 13-14. To the extent prior decisions were inconsistent with this view, those decisions were modified. Significantly, in so doing this office concluded that when preliminary reports and records "are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed ." Id., p. 14 (emphasis added). Because no final action has occurred here, further discussion is unwarranted.
2 See 08-ORD-108 (copy enclosed) (recognizing that reference to a report or a preliminary recommendation by a public agency in a public forum does not alter the relevant analysis or status of the record in reaffirming that preliminary recommendations and memoranda, "until such time as they are acted upon and adopted by the board" retain their preliminary status).