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 Frankfort Plant Board violated the Open Records Act in denying the November 4, 2013, request of Staff Writer Ryan Quinn, The State Journal , for "all preliminary evaluation forms submitted by Frankfort Plant Board directors to Board Attorney James Liebman related to the evaluation of General Manager Herbbie Bannister" in addition to "all other documents expressing directors' opinions of Bannister submitted to Liebman as part of the 'consensus evaluation' of Bannister." Mr. Quinn also requested a copy of the "consensus evaluation." In a timely written response, Staff Attorney Hance Price denied Mr. Quinn's request as FPB "has already provided a copy of the Board's general manager evaluation" and "[p]reliminary forms submitted by the individual Board members 'are in the nature of preliminary memoranda in which opinions are expressed and recommendations made, and thus qualify for exclusion pursuant to KRS 61.878(1)(j).' 00-ORD-177."
By letter dated November 20, Mr. Quinn initiated this appeal. He characterized the "smaller issue" presented as being that he does not believe the fact that FPB previously gave him a copy of the consensus evaluation is a sufficient basis for declining to provide him with another copy as long as he pays for it; however, the "larger issue" presented is that all members of FPB submitted evaluation forms to Mr. Liebman, "who then created the consensus evaluation document that supposedly accurately reflected the consensus of all five directors." Mr. Quinn acknowledged that Mr. Liebman presented the consensus evaluation during a public meeting and provided him with a copy but complains that he "can't tell the directors' unfiltered, individual opinions without these documents." In accordance with prior decisions of this office, including 00-ORD-177, this office affirms the denial by FPB on the basis of KRS 61.878(1)(j). Governing precedents also validate its position regarding duplicative requests.
Upon receiving notification of Mr. Quinn's appeal from this office, Mr. Price initially reiterated that Mr. Quinn's November 4 request "is duplicative and seeks a general manager's evaluation that Quinn admits he has already received." The FPB also maintained that the "individual assessments" requested "have not been adopted by the [FPB] and as such have not forfeited their preliminary character." In short, Mr. Hance asserted that FPB acted in accordance with prior decisions of this office, specifically 06-ORD-159 and 00-ORD-177. In relevant part, Mr. Hance argued:
In [06-ORD-159], 1 the Kentucky Attorney General wrote that 'on several occasions this office ha[s] concluded that an agency is not 'required to satisfy the identical request a second time in the absence of some justification for resubmitting that request.'" In that case, the agency withheld four reports totaling 'six to twelve documents' because they were previously provided. . . . There, the complaining party argued that it would take the same amount of time to copy the previously produced records as it would to copy new records. . . . Furthermore, the complaining party maintained that it was an employee's sole function to copy those records.
However, the Attorney General found that even assuming the request implicated only six to twelve documents and that agency staff had no other duties to perform, it was proper to deny the duplicative request. There was no "legitimate justification for resubmission . . . other than her own records mismanagement." Finally, the Attorney General noted agency employees serve "all the people' -- not simply those making 'extreme and unreasonable demands."
A review of existing legal authority validates the agency's position. This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 00-ORD-226. As the Attorney General has consistently recognized:
We do not believe, however, that [a public agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-92 this office observed:
95-ORD-47, p. 6; 00-ORD-226. Accordingly, unless a requester such as Mr. Quinn is able to explain the necessity of reproducing the same record(s), after the record(s) has already been provided to him, such as loss or destruction of the record(s), this office does not believe that a public agency such as FPB must satisfy the same request multiple times. No justification of any kind has been offered here and this office consequently has no basis upon which to find that FPB violated the Act. See 05-ORD-135; 08-ORD-194; 13-ORD-055. In light of this determination, the remaining question is whether FPB also properly denied Mr. Quinn's request for the "preliminary evaluation forms," i.e. , "individual assessments."
In support of his client's position regarding application of KRS 61.878(1)(j) in this context, Mr. Hance correctly observed that Mr. Quinn "is not entitled to a specific director's opinion." 2 He argued, in relevant part, as follows:
In [00-ORD-177], the Kentucky Attorney General considered the process used by the City of Henderson to evaluate its city manager. . . . There, the Mayor and commissioners completed preprinted forms with scores for eight areas. . . . Thereafter, these scores were "tabulated and averaged."
The Attorney General concluded "that the evaluations of [the city manager] that are completed by each of the commissioners and the mayor are in the nature of preliminary memoranda in which opinions are expressed and recommendations made, and thus [qualify] for exclusion pursuant to KRS 61.878(1)(j)." The Attorney General explained that such "records are exempt from public inspection as among 'the tools which a public employee or officer uses in hammering out official action within the function of his office.'" Consequently, the Attorney General ordered that the city disclose the average, or consensus, of the scores from all commissioners that was used as the basis of the city manager's pay increase, but found that individual commissioner scores were exempt from disclosure because they had not been adopted by the city.
Here, the individual assessments of the general manager were never adopted by [FPB]. Instead, Board Attorney James Liebman reviewed the individual evaluations and developed a consensus evaluation. It was that evaluation that [FPB] used at its October 15, 2013 board meeting to award the general manager a raise and not the individual board members' assessments. . . . Thus, those individual assessments have not forfeited their preliminary character and are exempt from disclosure pursuant to KRS 61.878(1)(j).
In resolving the question presented, this office is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). Nevertheless, the Attorney General has also consistently recognized that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i) and (j)]. From these exclusions, we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for government confidentiality.
Beckham , above, at 577-578
; See
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995)(recognizing that the "concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Both the courts and this office have construed the language of KRS 61.878(1)(j), upon which FPB relied (as well as (1)(i), which it did not invoke nor does it apply), in various contexts.
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 ") (emphasis added). See 99-ORD-220; 02-ORD-86; 07-ORD-156.
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 88-2, 83-405, 84-98, and 89-69. Each of the cited opinions was premised on the notion that "[r]ecords which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records. " 97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11. City of Louisville , the seminal case on this issue, and its progeny, 3 including the subsequent line of opinions/ decisions by this office, and 00-ORD-177 in particular, are controlling. See 97-ORD-168, pp. 2-7; compare 01-ORD-83 and 01-ORD-47. 4
Unable to conclusively determine whether the "preliminary evaluation forms"/"individual assessments" of FPB members were adopted, in whole or in part, whether expressly or impliedly, this office asked FPB to provide us with unredacted copies for purposes of in camera review per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, as well as the consensus evaluation already made publicly available. FPB promptly complied. Although this office is not permitted to reveal the contents of the evaluation forms/assessments, it suffices to say that our independent review validated the position of FPB; nothing contained therein justifies departing from 00-ORD-177, which FPB adequately summarized. Accordingly, this office reaches the same conclusion. Because the individual assessments contain preliminary recommendations and opinions, those records fall within the parameters of KRS 61.878(1)(j). As its name reflects, the consensus evaluation represents the collective opinion of FPB as a body; it was the basis for the agency's final action of awarding Mr. Bannister a pay increase. Consequently, the individual assessments retained their preliminary character and were properly withheld on the basis of KRS 61.878(1)(j). The denial of Mr. Quinn's request is affirmed.
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 Internal citations to 06-ORD-159 have been omitted to avoid confusion as FPB cited to LexisNexis and the page citations differ from those appearing in the version that is publicly accessible on this agency's website: www.ag.ky.gov. Likewise, internal citations to 00-ORD-177 have been omitted from the material quoted on pp. 4-5.
2 Mr. Hance further asserted that Mr. Quinn/the public is "only entitled to documents reflecting agency action. Here, it is the consensus evaluation that has already been provided that reflects [FPB] action." Accordingly, this office is compelled to clarify that in 00-ORD-177 this office actually found that awarding the City Manager a pay increase of 1.32 percent was the final action by the City of Henderson and the "summary evaluation" thus forfeited its preliminary status to the extent it was adopted as the basis for the pay increase. Id., pp. 5-6. In other words, the public was entitled not only to disclosure of the decision to award the City Manager a pay increase but also the record that formed the basis of that action. 00-ORD-177, p. 9. Because FPB has already released the "consensus evaluation" here, and 00-ORD-177 otherwise validates the position of the agency, further discussion of this point is unwarranted.
3 None of these prior opinions by the Court were addressed or modified in Baker v. Jones 199 S.W.3d 749 (Ky. App. 2006), and thus were presumably deemed consistent to the extent implicated.
4 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.