23-ORD-222
August 18, 2023
In re: Raymond Lauk/Eastern Kentucky University
Summary: Eastern Kentucky University (“the University”) violated
the Open Records Act (“the Act”) when it initially failed to explain how
exceptions to the Act applied to certain records. However, the University
did not violate the Act when, under KRS 61.878(1)(j), it withheld emails
consisting of preliminary recommendations and expressions of opinion
that were not adopted as the basis of final agency action.
Open Records Decision
On May 27, 2023, Raymond Lauk (“Appellant”), an associate professor at the
University, requested “all materials related to the employment and appointment” of
another individual as “Executive in Residence” and as “a tenured associate professor.”
In a timely response, the University provided various responsive records, but
withheld “approximately eight (8) pages of emails that the University has determined
are not subject to inspection as such are ‘preliminary’ in nature and not ‘intended to
give notice of final action of a public agency’ as contemplated by KRS 61.878(1)(i)-
(j).”1 This appeal followed.
When a public agency denies inspection of public records, it must “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.” KRS 61.880(1).
The agency must “provide particular and detailed information,” not merely a “limited
and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The
agency’s explanation must be detailed enough to permit [a reviewing] court to assess
its claim and the opposing party to challenge it.” Ky. New Era, Inc. v. City of
1
Although the University also withheld or redacted certain other records on different grounds, the
Appellant’s objections on appeal are limited to these eight pages of emails.Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). Furthermore, as this Office has
recognized, KRS 61.878(1)(i) and (j) are two separate exemptions, and public agencies
must explain how each of those separate exemptions applies to the withheld records
if an agency chooses to rely on both provisions. See, e.g., 21-ORD-168; 21-ORD-169.
Here, however, the University’s response was “limited and perfunctory” because it
did not explain how either of the two claimed exemptions applied to the records it
withheld. See, e.g., 22-ORD-007; 21-ORD-202. The University therefore violated
KRS 61.880(1).
On appeal, the University provides additional explanation in support of
withholding the records. The University states the emails consist of discussions
preliminary to a “reassignment” of the individual to the position of Executive in
Residence, including preliminary recommendations regarding “salary and title” as
well as “recommendations involving ‘matters of concern’ to the University” and
“various opinions . . . openly expressed.” Thus, the emails are subject to
KRS 61.878(1)(j), which exempts from disclosure “[p]reliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.”
Records exempt under KRS 61.878(1)(j) may lose their preliminary status and
become subject to disclosure under the Act if they are “adopted as the basis of the
final action taken.” See, e.g., 01-ORD-83 (citing City of Louisville v. Courier-Journal
& Louisville Times Co., 637 S.W.2d 658, 659-60 (Ky. App. 1982); see also Ky. State
Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953,
956 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times
Co., 830 S.W.2d 373, 378 (Ky. 1992)). A record is adopted as the basis of final agency
action insofar as the action “necessarily stem[s] from” that document. Palmer v.
Driggers, 60 S.W.3d 591, 595 (Ky. App. 2001). Here, the University states that three
other pages of emails, clarifying such matters as the individual’s budgeted salary,
“leave approver,” and effective date of reassignment, were provided to the Appellant
because the reassignment necessarily stemmed from those emails. However, the
University asserts the final action of reassignment did not necessarily stem from any
of the discussions or recommendations contained in the eight pages of emails it
withheld.
Pursuant to KRS 61.880(2)(c), the Office has reviewed the disputed records
confidentially. One string of emails dated August 31, 2022, relates to the planning
and scheduling of a meeting. The same is true of certain emails dated August 8,
August 9, and September 8, 2022. Communications concerning “strategies used to
plan [a] meeting, including discussions relating to the invitation and agenda, are
preliminary to resolution of the ultimate issue” and thus are exempt under
KRS 61.878(1)(j) because “the meeting is merely a step along the road to deciding the
ultimate issue.” Univ. of Louisville v. Sharp, 416 S.W.3d 313, 316 (Ky. App. 2016).Accordingly, such records remain preliminary unless they are adopted as the basis of
final agency action. Id. at 315.
The remaining emails in dispute consist of statements of opinion and
preliminary recommendations concerning proposed terms of the faculty member’s
employment, including salary terms that do not match those appearing in his
personnel file. These likewise fall within the scope of the exemption in
KRS 61.878(1)(j) and remain preliminary unless they are adopted as the basis of final
action.
The University states no final action has occurred with regard to making the
individual a “tenured associate professor” because he has not yet been granted or
denied tenure by the University’s board of regents in accordance with the University’s
bylaws. Accordingly, the University claims any recommendations concerning a status
of
“tenured
associate
professor”
necessarily
remain
preliminary
under
KRS 61.878(1)(j) prior to final action by the board of regents.
The Appellant, however, points to documents from the individual’s personnel
file that show his current status as “tenured” and his compensation as equivalent to
that of a tenured associate professor. According to the Appellant, these documents
show that the University has circumvented its board of regents and granted tenure
to the individual in violation of its own bylaws. However, the “specific conditions” on
the form titled “Terms of Faculty Appointment” indicate the position is an “Admin.
appt. to 12-month Exec-in-Residence with” a specified annual salary, and if the
appointee “returns to FT faculty, his salary will be adjusted back to base.”
Furthermore, his appointment term is listed on the same form as “[t]welve months.”
It is not clear, from these documents alone, that final action has been taken to award
tenure to the individual in the position of associate professor.
The Appellant claims to “believe that the eight (8) pages of undisclosed emails
will in fact disclose [a] scheme that was devised to ‘gift’ Associate Professor rank and
tenure in violation of university policy and [Board] Bylaws.” Having reviewed the
disputed emails, the Office notes that they contain no evidence of any such “scheme.”
To the extent the Appellant complains the University has paid excessive
compensation to the individual in question, that issue cannot be decided in the
context of an open records appeal under KRS 61.880(2) because it does not arise under
the Act. It is clear, however, that the University’s board of regents is the body
authorized to take final action regarding tenure. See KRS 164.360(1)(a) (“Each board
of regents for the universities may appoint a president, and on the recommendation
of the president may, in its discretion, appoint all faculty members and employees
and fix their compensation and tenure of service. . . .”). Although the Appellant claims
the University has attempted to grant tenure to the individual in violation of its ownpolicy and bylaws, he admits no recommendation had been presented to the Board on
this matter prior to this appeal,2 nor had the Board taken any action.
Preliminary
recommendations
under
KRS
61.878(1)(j)
retain
their
preliminary status until they are acted on by the individual or entity who “alone
determines what final action is to be taken.” City of Louisville, 637 S.W.2d at 659.
Thus, the actions of a person or group of persons having “no independent authority
to issue a binding decision” cannot alter the preliminary status of a recommendation.
Id.; see also 15-ORD-003; 07-ORD-117; 93-ORD-109. Here, it is undisputed that the
board of regents possesses the exclusive lawful authority to grant rank and tenure.
Accordingly, the eight pages of emails in question remain preliminary. Therefore, the
University did not violate the Act when it withheld the emails under
KRS 61.878(1)(j).3
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#242
Distributed to:
Dr. Raymond A. Lauk
2
After the appeal was initiated, the Appellant submitted a new request to the University after
business hours on August 16 claiming the board of regents took final action on the matter earlier that
day, and therefore, the records are no longer preliminary. Other than acknowledging receipt of the
Appellant’s new request, the University has not indicated whether final action indeed occurred or if it
would be providing the Appellant with the responsive records.
3
The University also claims the emails are exempt under KRS 61.878(1)(i) because they contain
preliminary drafts and notes. It is unnecessary to address this argument because KRS 61.878(1)(j) is
dispositive of the exempt status of the emails.Whitney A. Crowe, Esq.
Dana D. Fohl, Esq.
Ms. Sarah Watts