Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Jon L. Fleischaker, in his capacity as legal counsel for The Courier-Journal , initiated this Open Records Appeal by letter dated May 24, 2017, challenging the disposition by the Louisville Metro Government ("LMG") of Courier-Journal reporter Phillip Bailey's February 3, 2017, request for a "copy and/or list of all Louisville Metro Mayor Greg Fischer's executive orders [and] proclamations, including any and all requests made; and keys to the city issued since Jan. 1, 2017," and its disposition of his otherwise identical March 10, 2017, request for those records from February 4, 2017, through March 10, 2017. In timely responses dated February 8, 2017, and March 13, 2017, respectively, LMG advised that Mayor Fischer has not issued any executive orders in 2017 (as of March 10) nor has the Mayor issued any keys to the city. 1 Quoting the language of KRS 61.878(1)(a) and (i), LMG denied access to any existing responsive proclamations; LMG argued that proclamations "are documents that celebrate an event or person that are usually for very personal reasons - a graduation, a 25th anniversary, 40 years of volunteer service, a charity event, the opening of a new business, or the birth of a child. They do not address government business or actions."
Upon receiving notification of Mr. Fleischaker's Appeal from this office, Assistant Jefferson County Attorney Annale E. Renneker supplemented the initial responses of LMG. Ms. Renneker advised that on May 30, 2017, "upon realizing its mistake, LMG provided copies of the requested proclamations. " LMG apologized for the denial and the resulting delay in providing Mr. Bailey with access. Pursuant to 40 KAR 1:030, Section 6, "[i]f 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." See 03-ORD-087. Accordingly, this office respectfully declines to render a decision regarding the propriety of the denial by LMG of Mr. Bailey's request for the actual proclamations per 40 KAR 1:030, Section 6. LMG maintained that requests for proclamations are "private correspondence and exempt under KRS 61.878(1)(i). These requests for proclamations do not give notice of final action of a public agency and are not adopted as part of the proclamation. " Additionally, LMG asserted that some of the requests are protected from disclosure under KRS 61.878(1)(j) as "they are preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Requests for proclamations are opinions advocating for the special recognition of others. Additionally, these requests are not adopted as part of the proclamation. " 2 In accordance with existing case law and prior decisions by the Office of the Attorney General construing KRS 61.878(1)(i) and (j), this office respectfully disagrees.
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j) in a variety of contexts but little has changed regarding the relevant analysis. 3 See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983)(records defined at subsections (i) and (j) "which become a part of the records adopted by the [agency] as the basis of its final action become releasable as public records . . ." but unless those documents are "so adopted and made a part of the [agency's] final action, such documents shall remain excluded");
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (ratifying 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");
Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6 (Ky. App. 1995);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001);
University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013)(holding that certain e-mails fell within KRS 61.878(1)(i) and (j), and retained their preliminary character as the subject meeting did not conclusively resolve the ultimate issue and "piecemeal disclosure along the path of the decision making process is not mandatory"); 99-ORD-220; 02-ORD-86; 07-ORD-156; 11-ORD-052; 15-ORD-189.
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 upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69. A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034, p. 11, quoting
City of Louisville v. Courier-Journal and Louisville Times Company at 660. "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action. 16-ORD-256, p. 4. "In our view, 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." 01-ORD-83, p. 14, citing City of Louisville, supra. These authorities remain controlling; however, the final action inquiry under KRS 61.878(1)(i) is moot rather than determinative on the facts presented. 4 06-ORD-135, p. 12; 16-ORD-169.
In 00-ORD-168, the Attorney General held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence to private individuals," is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " Id., p. 2. This exception does not apply to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6; 04-ORD-125. Rather, "[w]ritings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee, or enter into a government contract based on bids." OAG 90-142, p. 6; see 07-ORD-181; 12-ORD-134. If a record cannot be properly characterized as correspondence with a private individual, "the question of whether final action has been taken by the agency becomes irrelevant." 99-ORD-220, p. 7. Simply put, "we do not reach the second part of the KRS 61.878(1)(i) analysis, requiring final action of a public agency, if [,as in this case,] the first part of the analysis, requiring that the disputed record consist of correspondence, is not met." Id. Even assuming the records were properly characterized as correspondence with private individuals in the relevant sense, however, the agency's reliance on KRS 61.878(1)(i) was misplaced insofar as the records were relied upon by the Mayor, i.e. , he adopted the recommendations and the opinions given by the requesters, in taking final action, i.e. , issuing the proclamations, whether expressly or not; contrary evidence has been presented.
In 99-ORD-220, the Attorney General applied this reasoning to applications from private entities or individuals to a governmental entity for licenses to conduct business. 5 The Attorney General extended this reasoning to applications for the purchase of conservation easements in 01-ORD-86 and to a public agency's correspondence with a private contractor on issues regarding the administration of a contract in 00-ORD-98. Significantly, in 04-ORD-192 this office rejected a city's claim that a petition signed by individuals advocating for the sale of city-owned property was correspondence with private individuals, characterizing the petition as "a formal written document requesting a right or benefit from a group in authority upon which that group was expected to rely in taking action relative to the sale of the property." 04-ORD-192, p. 4. "[T]he signers," the Attorney General noted, "affixed their signatures with the goal of 'advocating or recommending certain policy action.'" Id. In 07-ORD-181, this office assessed the propriety of the Lexington-Fayette Urban County Government's reliance on this exception to support nondisclosure of correspondence between council members and private individuals concerning a proposed historic (H-1) overlay district application. Relying on the reasoning above, this office concluded that said correspondence:
is in the nature of communications upon which the Council is expected to rely in taking action relative to the proposed historic overlay, and was submitted with the goal of advocating or recommending a certain course of action. Nothing in the record on appeal, or the disputed correspondence itself, suggests that the candor of the correspondents was dependent upon assurances of confidentiality. Our conclusion is not altered by the fact that the Council's ultimate decision in this matter "is based on the evidence presented at the hearing." The disputed correspondence was, in fact, submitted with the expectation that the Council would rely on it to take the course of action advocated by the correspondent, and, under the line of reasoning set forth above, does not qualify as correspondence with a private individual .
07-ORD-181, p. 6 (emphasis added); compare 08-ORD-140.
This office reaffirmed 07-ORD-181 in 12-ORD-134 (holding that comments made to a school board after it held a "superintendent candidate forum" were improperly withheld) . "Regardless of whether the comments are characterized as 'correspondence' or 'submissions,' they do not enjoy protection under KRS 61.878(1)(i)," this office reasoned, as "consistent with the cited decisions culminating in 07-ORD-181, they were submitted with the goal of advocating or recommending that the board take a particular course of action, here the selection of the superintendent candidate for whom they expressed support." 12-ORD-134, p. 6. Notwithstanding the fact that other factors were considered when the board made its ultimate selection, this office concluded, "the comments were submitted to the board with the expectation that the board would rely on them. The record before us, coupled with our in camera inspection of the disputed comments, confirms that the candor of the commenters did not depend on any assurance of confidentiality and that they expected the board to rely on the comments in arriving at its final selection." Id.
LMG attempted to distinguish the requests for proclamations in dispute from the records in the foregoing appeals by arguing that the Mayor is "not required to issue proclamations; the Mayor and the citizens behind these requests do not have a formal agreement requiring the other to take some action. A proclamation does not bestow any benefit or right upon a citizen." Additionally, LMG relies upon the fact that proclamations do not "affect government policies" or have "any impact on the LMG budget." Simply put, a "formal agreement, " i.e. , requirement for the agency to act, may have existed in some cases, but is not required under this line of decisions nor does the lack of impact on the budget or governmental policies alter the relevant analysis under KRS 61.878(1)(i). In any event, a request for a proclamation is a "public matter where a decision needs to be made," contrary to LMG's position. Equally unpersuasive is the assertion that a proclamation does not bestow a benefit on the recipient when the very nature of a proclamation is to publicly recognize the individual, group, organization, etc . for its achievements or contributions. The requests for proclamations are "public records" 6 within the meaning of KRS 61.870(2) and LMG must produce the records for public inspection if they are not exempt under KRS 61.878(1).
Mr. Fleischaker correctly noted on appeal that LMG "expressly invites people to 'request a proclamation from the Mayor'" on its website; in other words, the Mayor issues proclamations in the course of performing the duties and functions of his office. No credible argument can be made that proclamations "do not relate to government business or functions," i.e. , are not "related to functions, activities, programs, or operations funded by state or local authority." KRS 61.870(2). LMG is correct in asserting that it may be "in the interest of both the Mayor and the citizen to be as candid as possible in their request to ensure the Mayor" possesses all relevant information; however, that fact is neither controlling nor legally relevant under KRS 61.878(1)(i). A citizen requesting a formal and final action by a public agency, including a proclamation, is presumed to know it may be subject to public disclosure in part, if not in whole. See 12-ORD-221 (local agency violated Open Records Act in failing to properly maintain copies of requests for agency records made under the Open Records Act per the applicable retention schedule); 12-ORD-055 (agency's decision to withhold the requested "complaints" or initiating documents is contrary to existing legal authority) ; 09-ORD-205.
In the alternative, LMG argued that some of the requests for proclamations are protected under KRS 61.878(1)(j) "as preliminary recommendations in which opinions are expressed." Our in camera review of the requests, conducted pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, confirms 7 that most of the requests contain the recommendations and/or the opinions given by those making the requests. LMG acknowledged on appeal that records of a preliminary nature lose their preliminary status "when they are incorporated into final agency action, " but maintained that requests are not "incorporated" into the proclamation issued. Rather, LMG argued, "the proclamation is prepared for the Mayor's signature after considering the recommendation given." Regardless of whether private citizens or LMG employees made the requests, however, existing legal authority removes any doubt as to whether those records forfeited their preliminary character once the Mayor issued the proclamations to the extent he adopted, i.e. , necessarily relied upon, agreed with, or endorsed the recommendations and opinions given, whether implicitly or expressly. Those records or portions thereof, which did not form the basis of the agency's final action (including the decision to take no action), maintained their preliminary characterization; LMG improperly withheld the remainder from disclosure and must separate any protected information/records per KRS 61.878(4). 8 See 15-ORD-067.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. Inasmuch as Mr. Fleischaker has not challenged this aspect of the denials, further discussion is unwarranted.
2 By letter dated June 5, 2017, Mr. Fleischaker observed that LMG had suggested no requests for mayoral proclamations existed; however, if records pertaining to requests for proclamations exist, he noted, "those records should be considered as part of this appeal." LMG reiterated its position that some of the requests "are correspondence with private individuals that do not give notice of final action of the Mayor's Office" and others are "preliminary recommendations and memoranda in which opinions are expressed." Ms. Renneker advised that private citizens and other LMG employees request proclamations from the Mayor's Office (a request by an LMG employee would certainly not qualify as correspondence with a private individual). See 04-ORD-244; 09-ORD-042; 13-ORD-051. LMG then attempted to distinguish existing legal authorities from the facts presented here. This finds the agency's interpretation of prior decisions unpersuasive as discussed in greater detail below.
3 Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j), respectively, as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended