Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Ravenna ("City") violated the Open Records Act in its disposition of William Van Cleve's request for communications between the City and the Estill County Board of Education regarding a potential contract to provide a School Resource Officer to the Board. For the reasons stated below, we find that the City did not violate the Act.
In a request to the Irvine City Clerk, dated October 11, 2018, Mr. Van Cleve ("Appellant") requested:
[A] copy of all correspondence between the City of Irvine, Kentucky[,] and the Estill County Board of Education concerning a contract or possible contract for the City of Irvine to provide a qualified Police Officer to serve as School Resource Officer for the Estill County Board of Education.
Having received no response, Appellant appealed to this office by letter, dated October 20, 2018.
Rodney G. Davis, attorney for the City, responded to the notice of appeal on October 23, 2018. The City provided a copy of a letter dated October 12, 2018 responding to Appellant's request. The letter to Appellant denied his request, stating:
Respectfully, the preliminary communications between the City of Irvine and the Estill County Board of Education related to the potential contract for a school resource [officer] are exempt from inspection or production pursuant to KRS 61.878(1)(j). These communications do not reflect final agency action and as such are exempt. See generally OAG 86-26. When final action is taken by the City of Irvine you may again request this information.
In order to determine whether the exemption claimed by the City was applicable, this office requested that the City provide an unredacted copy of the records withheld for an in camera review under the authority provided to this office under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. The City promptly provided that. Based upon the following, this office finds no violation of the Act in the City's disposition of Appellant's request.
Although this office is prohibited from disclosing the contents of the record provided, by KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, we may generally describe the record as proposed contractual terms for providing a School Resource Officer to the Board. In 04-ORD-081, this office reviewed whether the Cabinet for Economic Development violated the Open Records Act in denying a request for records related to the Cabinet's financial incentives offered to the United States Enrichment Corporation (USEC) to persuade it to locate two manufacturing plants in Paducah, McCracken County, Kentucky. As the facts in that appeal are somewhat similar to the current appeal, we borrow heavily from the analysis in that decision.
Kentucky courts and this office have long recognized that public records that are preliminary in nature forfeit their exempt status only after they are adopted by the agency as part of its final action. 00-ORD-139; City of Louisville v. Courier-Journal and Louisville Times, 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); Univ. of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992).
Moreover, the courts have recognized that with respect to certain records the General Assembly has determined the need for governmental confidentiality. In Beckham v. Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575, 577-578, (Ky. 1994), the Kentucky Supreme Court stated:
[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 are recommended." KRS 61.878(1)[(i)-(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 governmental confidentiality.
See also, 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) .
In 04-ORD-030, in discussing the application of the case law quoted above and KRS 61.878(1)(i) and (j) to preliminary documents, this office stated:
Guided by these principles, as well as an evolving body of case law, the Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only after they are finalized or adopted by the agency as part of its final action. City of Louisville v. Courier-Journal and Louisville Times, 637 S.W.2d 658 (Ky.App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky.App. 1983); Univ. of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992). In an ever growing body of open records decisions, the Attorney General has demonstrated a commitment to implementing the intent of the General Assembly in enacting KRS 61.878(1)(i) and (j), and the courts in interpreting these exemptions. Thus, in an early open records decision, this office opined:
OAG 78-626, p. 2. In a similar vein, we observed:
[P]reliminary drafts, notes, etc., are simply part of the tools which a public officer or employee uses in carrying out his statutory functions. [Citation omitted.] The public has a right to inspect a complete public action . . . . The work papers are merely the informal and trial and error approach to the problem in the inchoate period leading up to the formulation of the completed [action].
OAG 78-816, p. 2.
Prior decisions of this office support the City's denial of the request for inspection of records relating to preliminary communications between the City and the Estill County Board of Education for the City to provide a School Resource Officer. In OAG 91-21, this office determined whether the City of Owensboro and Daviess County properly denied a request for, among other things, "the final incentive package" offered to Scott Paper Company and any "final or preliminary communications between [the City and County] and any official of Scott Paper Company." This office held that the City and County had properly relied on KRS 61.878(1)[i] and [j] in withholding access to those records. At p. 5 of OAG 91-21, the office stated:
It is our understanding that the extent of the action taken in this matter by the City of Owensboro and Daviess County has been to issue a Letter of Intent to Scott Paper Company. The Letter of Intent is not final agency action, because the "incentive package" is subject to negotiation and change until such time as final agreement is reached among the parties. Therefore, the Letter of Intent is a preliminary document that may be withheld from inspection pursuant to KRS 61.878(1) [i] and [j]. At this time, there is no "final incentive package" for the City of Owensboro and Daviess County because no final agency action has been taken in this matter. Accordingly, the City of Owensboro and Daviess County were justified in withholding this document pursuant to KRS 61.878(1)[i] and [j].
See also , OAG 79-326 (holding that proposals and counterproposals submitted in negotiating process may be withheld pursuant to KRS 61.878(1)(i) and (j)); OAG 87-21 (holding that records involved with an ongoing competitive negotiation process are preliminary pending final resolution of the matter); 97-ORD-62 (holding that records generated in the course of negotiations and disclosing the substance of those negotiations may be withheld pursuant to KRS 61.878(1)(i) and (j) since "premature disclosure of records reflecting the negotiations . . . could seriously compromise the project [and] nondisclosure of those records prior to the finalization of the agreement promotes the purposes for which KRS 61.878(1)(i) [and] (j) . . . were enacted . . . .").
All of these decisions support the City's position that the records relating to its communications of the terms for providing a School Resource Officer are preliminary in nature and were properly withheld, as no final agency action has been taken. The terms of the offer remain preliminary and inchoate as they have not been accepted and no final agreement reached. The City has stated that "the matter is still up in the air . . . ." Under these facts and circumstances, we conclude that the City properly denied the request for records related to the terms for the City's proposal to provide a School Resource Officer and that KRS 61.878(1)(i) and (j) permit the City to continue withholding the record until such time as there is final action on the proposal, or there is a decision to take no action. We caution the City that it cannot delay release of the record indefinitely, as at some time in the future the lack of action on the proposal will itself constitute final action.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.