Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Western Kentucky University violated the Open Records Act in its disposition of Tanner Cole's August 24, 2014, request for "copies of the pages of the Western Kentucky University 2014/2014 Faculty Work Life Survey containing faculty comments on President Gary Ransdell's performance (pg. 20) and faculty comments on Provost Gordon Emslie's performance (pg. 23)." For the reasons that follow, we find no violation of the Act.
In a response dated August 25, 2015, University General Counsel Deborah T. Wilkins stated the following regarding the Faculty Work Life Survey:
This survey is conducted electronically by the WKU University Senate Faculty Welfare and Professional Responsibilities (FWPR) Committee. The FWPR is a standing committee of Senate [ sic ], and periodically conducts this survey in order to "take the pulse" of the WKU faculty's "satisfaction/dissatisfaction with a variety of issues." Those responding to the survey remain anonymous, and may, if the respondent chooses, submit anonymous comments to the Board of Regents, the President, and/or the Provost.
The University is denying your request for this information on the basis that these comments constitute opinions shared confidentially by the survey respondents, which are shared with the officials noted above, and have not lead [ sic ] to nor represent any final action on the part of WKU. ?
? KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making processes by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency.
Mr. Cole initiated an appeal to this office on September 22, 2015. In a response letter dated, Ms. Wilkins provides the following pertinent additional information:
The written comments concerning the Provost, the President and the Board of Regents are provided by the University Senate to the Chair of the Board of Regents. In this case, the Chair provided a copy to each of the Board members and the President. The survey has been conducted approximately every year. During my tenure as General Counsel (1994 to date) I am not aware of any agency action or final agency action wherein these written comments have been the basis for/of, referenced, or incorporated as a part of an agency action.
KRS 61.878(i) and (j), respectively, authorize the nondisclosure of these types of records:
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[.]
In OAG 91-214, we observed:
This Office has repeatedly recognized that preliminary inter - or intra-office memoranda or notes, setting forth opinions, observations and recommendations, are exempt from the application of the Open Records Act. ? Such documents must be made available for inspection if, and only if, they are, or have been, ? adopted by the agency in taking final action.
A "preliminary intra university communication containing the personal impressions, observations and opinions of a particular official" may be withheld from public inspection if it is not adopted as the basis of "the University's final decision or determination" in some matter. OAG 88-57. "One of the purposes of KRS 61.878(1)[(i) and (j) is] to allow the free flow of discussion? Consequently, recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny," in order to facilitate "an open atmosphere among staff members whereby they may express their opinions." OAG 88-85.
In 92-ORD-1375, we recognized an exemption from the Open Records Act for student evaluations of instructors, in part on the basis of KRS 61.878(1)(j). We find that expressions of faculty opinions in a survey concerning regents and administrators are somewhat analogous to the comments on such evaluations, and thus are similarly protected by KRS 61.878(1)(j) if they have not been adopted as the basis of some final agency action.
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982).
In this case, the University indicates that the faculty comments about administrators in the Faculty Work Life Survey have never been adopted as the basis of any final agency action. Accordingly, the records retain their preliminary character and were properly withheld from public inspection.
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.