Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Calloway County School District violated the Open Records Act in its disposition of Clara Franklin Gal's April 16, 2013, request for copies of various records. For the reasons that follow, we conclude that the District's disposition was partially deficient.
Ms. Gal's April 16 letter, addressed to the custodian of records, requested copies of the following:
1) Documents, emails, databases, and any other records electronically generated or stored concerning "Laker Pride" in 2012 and 2013;
2) Any documents, emails, databases, and any other records electronically generated or stored concerning "Laker Pride" in 2012 and 2013 not on the premises;
3) Specifically, any document requests by the Calloway County Board members about Laker Pride student numbers, costs per student, savings by altering Laker Pride;
4) Documentation or analysis of how the Laker Pride program increased the graduation rate at Calloway County High School from 2008-2012;
5) The documents that cite the monies that Calloway County School District has had in reserve for the years 2008-2012 as a number and percentage;
6) Specifically, and [ sic ] documents, emails, databases, and any other records electronically generated by the Superintendent, Central Administrative staffer, school site administrator, or classified employee that shows a savings of $ 150,000 from the Channel 6 News story of April 11, 2013; and
7) A copy of the CCSD policy governing this request per Statute.
On April 19, 2013, Calloway County Schools Finance Director Amy Owens replied, in substance, that to her knowledge there were no records responsive to requests 2, 3, 4, or 6. In response to request 1, she provided copies of "Laker Pride" budgets for the school years for 2008-09 through 2011-12, a June 2009 Facilities Plan relating to the Laker Pride Center, a "Laker P.R.I.D.E. Center Application," a description of the program, and a "list of facts" concerning the program. In response to request 5, she provided copies of the contingency budget account for the years in question, along with the percentage figures requested and a website address for the audited financial statements from which the percentages were gleaned. 1 Finally, in response to request 7, Ms. Owens provided the policy in question.
Ms. Gal's appeal to this office was received on May 6, 2013. She alleges the following deficiencies in the April 29 response:
Number 1: There has [ sic ] to be emails and documents generated between the Superintendent and the district administrator in charge of Curriculum and Instruction;
Number 2: The high school was not contacted concerning these requests;
Number 3: Board members have requested documentation from the Superintendent and the Superintendent has been unresponsive;
Number 4: The response is unresponsive concerning graduation rate. The Laker Pride program was set up for that sole purpose. Laker pride has served 66 students this year who by all accounts would perhaps not graduate on time;
Number 6: There are no documents sent verifying costs/savings which would add up to the savings that the Superintendent claimed in a TV interview. I believe that the Superintendent has a fiduciary responsibility to be accurate to the public.
On May 15, 2013, Ms. Owens issued the following response to these concerns on appeal, which she addressed to Ms. Gal:
Number 1: In an effort to insure that no records were withheld, all locations have been contacted once again and additional searches were administered and completed. Several additional documents and emails have been located and they have been included for your review at this time.
Number 2: You are correct in noting that the high school was not contacted prior to responding to your original request for records. The program you requested records concerning is not a high school program and therefore the high school was not contacted. The high school has since been contacted and records have been requested. The documents submitted by the high school are exempt pursuant to KRS 61.878.1(c)3(i) [ sic ].
Number 3: You are correct that the board members have requested information. As I mentioned in my response to your original request, all requests were responded to orally. No records exist concerning those responses, as they were not made in writing.
Number 4: As stated in the response to your original records request, no documentation exists to suggest that Laker Pride has increased the graduation rate for the Calloway County School District.
Number 6: As stated in the response to your original records request, no documentation exists to verify estimated savings.
As to items 3, 4, and 6, we have no basis to disbelieve Ms. Owens' assertion that no responsive records exist. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, there is a possible records management issue as to item 1.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The District's response to item 1 raises some concern in that additional responsive records were located in follow-up searches when they could not be located initially. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Although it appears that all responsive records have now been provided to Ms. Gal and that no records were intentionally withheld from the original response, we encourage the District to contact the Kentucky Department for Libraries and Archives for any needed assistance with its records management.
As to item 2, the District has clarified that the records retrieved from Calloway County High School have been withheld as "preliminary" pursuant to KRS 61.878(1)(i) and (j). Those subsections establish exceptions to the Open Records Act for:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
While a public agency "is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable," this office has never "required an itemized index correlating each document withheld with a specific exception." 97-ORD-41. In the course of our review, under authority of KRS 61.880(2)(c), this office obtained a copy of the withheld records. The records from Calloway County High School fall into three categories, which we must evaluate separately.
The first is an e-mail communication from Superintendent Kennith Bargo on May 10, 2013, requesting records from the high school. Since this is correspondence generated after the filing of this appeal and substantively has nothing to do with the "Laker Pride" program, we do not deem it responsive to Ms. Gal's April 16 request. Therefore, it need not (and indeed could not) have been provided in response to that request.
The second category is a series of e-mails pertaining to the scheduling of a meeting. We find that these do not fall under the "preliminary" exceptions. Messages in the nature of "non-policy fact-based communications," which are "devoid of recommendation, opinions, or policy formulations," cannot be characterized as preliminary "because they constitute neither drafts, notes, nor correspondence with private individuals nor subjective expressions of opinion or recommendation. " 05-ORD-144; see also 05-ORD-221 and decisions cited therein. This category of non-exempt records includes "communications directed at rescheduling a meeting[.] KRS 61.878(1)(i) and (j) do not extend protection to such informational exchanges or 'conversational-type communications.'" 11-ORD-155, n. 8. This second set of e-mails should therefore be disclosed.
The third category of records consists of a circulated draft report concerning Safe Schools Services and e-mail discussions of that draft. Assuming that the draft and comments have not been adopted as the basis for final agency action, these records would be exempt from disclosure as "preliminary drafts" under KRS 61.878(1)(i) or "preliminary recommendations" under KRS 61.878(1)(j). Cf.
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982). If, however, they have been adopted as the basis for final action, they forfeit their preliminary characterization to that extent. 01-ORD-47.
In conclusion, therefore, we find that the draft report on Safe Schools Services and e-mails commenting on the draft were properly withheld pursuant to KRS 61.878(1)(i) and (j) if they have not subsequently been adopted as the basis of some final action. The e-mails merely relating to the scheduling of a meeting were not exempt and should be provided to Ms. Gal. In all other respects, this appeal is moot as the District has provided copies of all other records responsive to Ms. Gal's request. See 40 KAR 1:030, Section 6 ("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").
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 proceedings.
Distributed to:
Ms. Clara Franklin GalMs. Amy OwensRichard W. Jones, Esq.
Footnotes
Footnotes
1 We have previously held that providing a web address for a document is not among the methods of inspection contemplated by the Open Records Act. 09-ORD-026; 09-ORD-077; 12-ORD-111. In this appeal, however, Ms. Gal does not complain of any defect in the response to request 5; therefore, we make no finding as to whether this portion of the response complied with the Act.