Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Morehead violated the Open Records Act in its disposition of William Mains' April 15, 2016, request for records relating to an issue as to city boundaries. For the reasons that follow, we conclude that the Department's response was procedurally deficient and was substantively deficient in part.
Mr. Mains' April 15 request was for inspection or copies of the following records:
All letters, emails, correspondence, and memoranda concerning annexation of Fraley Drive stemming from Morehead Annexation Ordinance 07:093 from 2012 to the present date. Also, all letters, emails, correspondence and memoranda concerning the survey of Richie Newton signed 2/16/16. In addition, any correspondence, emails and memoranda from 2012 to the present concerning the city boundary on Fraley Drive, and any correspondence, emails and memoranda concerning whether the structure located at 855 Fraley Drive is in or out of the Morehead city limits.
On April 19, 2016, City Attorney Joyce Planck Stevens notified Mr. Mains: "We are in the process of gathering and copying this information for you. We will have the documents ready for you to pick-up on Wednesday, April 27, 2016 after 12:00 p.m."
We note that this initial response was procedurally in violation of KRS 61.880(1), which requires final disposition of an open records request within three business days, excluding weekends and legal holidays, except in the circumstances described in KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Although the city attorney designated a date when the records would be available, she did not provide a "detailed explanation of the cause" for delaying inspection beyond the three days provided by law. We therefore find that the City of Morehead committed a procedural violation of the Open Records Act.
The final response to Mr. Mains' request, dated April 27, 2016, identifies the records requested and states as follows:
Included in said documents are email correspondence in which you were a party and documents which represent final actions by the City of Morehead. Requested documents which were preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of the City and requested documents which were preliminary recommendations and preliminary memoranda in which opinions were expressed or policies formulated or recommended were exempted per KRS 61.878(1)(i) and (j).
Mr. Mains initiated an appeal to this office on April 29, 2016, arguing that the public is "entitled to review all documentation in the City's possession on which it has relied in making this decision" regarding the boundaries of the annexed area."
We note initially that the city's final response on April 27 provides no explanation of how KRS 61.878(1)(i) and (j) are supposed to apply to specific categories of records. KRS 61.880(1) provides: "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. " (Emphasis added.) As the Kentucky Court of Appeals has held, this language "requires the custodian of records to provide particular and detailed information in response to a request for documents," so that a "limited and perfunctory response" is not substantial compliance with KRS 61.880(1).
Edmonson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Thus, we find that the mere recitation of the statutory language delineating the exceptions in KRS 61.878(1)(i) and (j) constituted another procedural violation.
In her May 10, 2016, response to Mr. Mains' appeal, Ms. Stevens provides a more detailed explanation of the withheld material:
[A]ll correspondence between city officials and [Jimmy Mains or Paul Hitchcock] was not produced as said documents were considered correspondence with private individuals and exempted under KRS 61.878(i) [ sic ].
E-mails between the employees of the City regarding this issue were also not disclosed as these emails were considered preliminary recommendations in which the opinions of the employees were expressed KRS 61.878(j) [ sic ]. Further, emails with the secretary of state's office and city officials were not disclosed under the same exception cited above. Mr. Mains states in his appeal that if the predecisional documents are incorporated into final agency action, they are not exempt. Council took final action and was not privileged to the inter-office email correspondence. Thus, these emails were not incorporated into the Resolution that Council passed on March 14, 2016. ?
Also not disclosed were memorandum [ sic ] to the Board of City Council from Administration which they receive as a part of their council packets each month. These memoranda are given to the Board of City Council as preliminary recommendations on actions that may come before council and contain opinions and advice from the City Attorney and exempted under KRS 61.878(j) [ sic ].
Thus, we turn to an analysis of the substantive law.
KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the cases of, respectively:
(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 [.]
In
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "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.)
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).
While Ms. Stevens argues that the inter-office e-mails of the Mayor, City Planner, Assistant City Planner, City Clerk, and Deputy City Clerk were not "incorporated" into the final action of the City Council, "incorporation" is not the standard. The concept of "adoption" is much broader than incorporation. 01-ORD-83. To the extent that the opinions and recommendations expressed by these city officials in their internal e-mails formed a basis for the council's final decision regarding the coverage of the annexed area, its decision "necessarily stems from" those communications, regardless of whether the e-mails themselves were read by the council members. Thus, the documents need not have been incorporated by the council as long as its decision was traceable to the opinions and recommendations expressed therein. See generally City of Louisville, supra. In the absence of any other alleged basis for the final actions taken by the city, we deem them to stem from these opinions and recommendations.
Pursuant to KRS 61.880(2)(c), we have conducted an in camera review of the withheld records, which consisted of 157 pages. Attached to this opinion is an index generally identifying the documents by page number in the order they were provided to us by the City of Morehead. Under the legal standards enunciated above, we reach the following conclusions.
The following pages consist of copies of final agency actions, sample documents, or blank forms, which cannot, therefore, be categorized as preliminary under KRS 61.878(1)(i)-(j): 16-24, 47-53, 153-154 .
The following pages consist of draft documents that are identical or substantially identical to the enacted Resolution 03:2016, or portions thereof, and therefore have been adopted as the basis of final action and should be disclosed: 9-10, 55-56, 88-89, 92-93 . Cf . 11-ORD-052 (where "the agency either adopted the draft verbatim, or with very slight modification, thereby adopting it as the basis or part of the final action taken, ? the draft forfeited its preliminary character to that extent"), citing
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992) (Open Records Act "exhibits a general bias favoring disclosure").
The following pages consist of a draft document that is identical to the City of Morehead's executed contract with Vision Engineering, and therefore has been adopted as the basis of final action and should be disclosed: 26-28 .
The following pages consist of a proposal with terms substantially identical to the City of Morehead's executed contract with Vision Engineering, and therefore has been adopted as the basis of final action and should be disclosed: 30-31 .
The following pages of e-mails, though not exempt under KRS 61.878(1)(i)-(j), contain address information for private individuals that may be subject to categorical redaction pursuant to KRS 61.878(1)(a) under
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013): 1-2, 4-5, 81-86 .
The following pages of e-mails and memoranda contain expressions of opinion, preliminary recommendations, or formulations or recommendations of policies; but should be disclosed at least to the extent that they relate to the Mains matter, as we deem those portions to have been adopted as the basis of final action: 32-36, 63-70, 96-97, 125-129 .
The following pages of e-mails either contain no expression of opinion, preliminary recommendations, or formulations or recommendations of policies; or, to the extent they contain such material, those matters have been adopted as the basis of final action, and therefore should be disclosed: 8, 12-15, 25, 29-31, 37-42, 45-46, 54, 57-62, 71-77, 87, 90-91, 94-95, 100-102, 107, 110-111 .
The following page of e-mail contains expressions of opinion, not adopted as the basis of final action, and therefore need not be disclosed pursuant to KRS 61.878(1)(j): 11 .
The following pages of e-mails contain expressions of opinion, not adopted as the basis of final action, and correspondence with private individuals, and therefore need not be disclosed pursuant to KRS 61.878(1)(i)-(j): 3, 6-7, 43-44, 78-79, 103-104, 117-118, 133-134 .
The following pages of e-mails contain expressions of opinion and preliminary recommendations, not adopted as the basis of final action, and therefore need not be disclosed pursuant to KRS 61.878(1)(j): 103-104 .
The following pages of e-mails consist of correspondence with private individuals and therefore need not be disclosed pursuant to KRS 61.878(1)(i): 80, 105-106, 108-109, 112-116, 119-124, 131-132, 135-150, 152, 155-157 .
In conclusion, we find that the City of Morehead committed procedural violations of KRS 61.880(1) in its responses. Its final disposition of Mr. Mains' request was partially in violation of the Open Records Act and partially justified in withholding records, as detailed above.
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.