TO BE PUBLISHED
March 5, 1993
IN RE: Jon Fleischaker/Office of the Governor
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Governor's Office's denial of Mr. Tom Loftus's December 3, 1992, request to inspect Governor Jones's daily schedules for the period from December 11, 1991, through the present. Mr. Loftus is The Courier-Journal's Frankfort Bureau Chief, and his request was made under the Kentucky Open Records Act.
In a letter dated December 10, 1992, Mr. J. Patrick Abell denied Mr. Loftus's request. Relying on KRS 61.878(1)(a), he argued that Governor Jones's schedule "is a mixture of family, social and public events, it being impossible to schedule his public events without keeping track of his private schedule." It was therefore his position that disclosure of the Governor's schedule would constitute a clearly unwarranted invasion of personal privacy. In addition, Mr. Abell maintained that the schedule is a preliminary document within the meaning of KRS 61.878(1)(h), "in that unforeseeable circumstances often require last minute cancellation of events that appear on the schedule." In support of his position, he cited OAG 78-626, in which this Office held that the calendar of the Mayor of the City of Louisville was exempt from public inspection under KRS 61.878(1)(a), (h), and (i).
On behalf of his client, The Courier-Journal, Mr. Jon Fleischaker appealed to the Attorney General, pursuant to KRS 61.880(2), the Governor's Office's denial of Mr. Loftus's request. It is his position that "Kentucky taxpayers have a legitimate interest in how their highest-ranking public official spends his work day, and that therefore Mr. Abell's reliance on KRS 61.878(1)(a) is misplaced." Citing University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992), in which the Kentucky Supreme Court held that the right of privacy
does not prohibit disclosure of matters of public or general interest, he argues that one of the purposes of the Open Records Act is to allow the public to scrutinize the actions of its public agencies. Continuing, he notes that if the Governor's schedule contains notations reflecting purely personal matters, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, those notations must be redacted pursuant to KRS 61.878(4).
Mr. Fleischaker also rejects Mr. Abell's invocation of KRS 61.878(1)(h), asserting that the Governor's past schedule cannot be considered a preliminary document. He observes:
While a person's proposed agenda for a particular date in the future could be contingent, subject to change, or even preliminary, that characterization necessarily dissolves when the date at issue passes. Kentucky's courts have found such is the case for preliminary notes, recommendations and investigations utilized by an agency as a part of a particular action. Once the agency takes final action, those materials which were once preliminary in nature lose their exempt status. University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d at 378; Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953, 956 (1983).
Mr. Fleischaker distinguishes OAG 78-626, cited by Mr. Abell in support of his position, noting that that "opinion was rendered several years before the Kentucky Supreme Court and Court of Appeals articulated the various standards we reference herein. . . ."
The issue presented in this appeal is whether the Governor's Office properly relied on KRS 61.878(1)(a) and (h) in denying Mr. Loftus's request to inspect the Governor's schedule. For the reasons set forth below, we conclude that Mr. Abell properly denied his open records request.
In OAG 78-626, this Office carefully considered the practical implications of compelling release of a public official's appointment schedule and concluded that that document could properly be withheld from public inspection. Our opinion was premised on KRS 61.878(1)(g), now codified and hereinafter referred to as KRS 61.878(1)(h). It is instructive to quote at length:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (h)]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection. We believe that the Mayor's appointment calendar is of such a nature. Although the appointment calendar contains a record of activities and contacts by the Mayor, a record which his office will probably want to keep on file for sometime, we nevertheless believe that it is nothing more than a work paper, a preliminary draft, notebook or memorandum.
OAG 78-626 at p. 2. Contrary to the views expressed by Mr. Fleischaker, we do not believe that the standards articulated in University of Kentucky v. Courier-Journal, supra, or Kentucky State Board of Medical Licensure, supra, alter the conclusion we reached in that opinion. In our view, Mr. Fleischaker's statement that "[o]nce final action is taken, those materials which were once preliminary in nature lose their exempt status" does not represent an accurate statement of the law.
In University of Kentucky v. Courier-Journal, supra, the Kentucky Supreme Court held that the University's official response to NCAA allegations constituted the final result of an extensive investigation and must be made available for inspection. The Court reasoned:
The submission of the report to the NCAA by the University constitutes final action of the University, an agency subject to the disclosure requirements contained in the Act. Further, investigative materials
that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action. [Citations omitted.]
University of Kentucky v. Courier-Journal, supra, at 378. (Emphasis added.)
This decision is entirely consistent with the rule announced in Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., supra. In that case, the Court of Appeals found that the Board must disclose records reflecting final actions taken against its licensees, as well as the complaints which initially spawned the investigation, since the final actions taken stemmed from the complaints and the complaints were deemed incorporated as part of the final determination. The court also recognized, however, that internal preliminary materials not incorporated into final agency action remain exempt under the statute and principles set out in City of Louisville v. The Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). The court opined:
It would appear to this court and it is so held, that those documents defined in subsection (g) and (h) [now (h) and (i)] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records . . . . Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [(h) and (i)] of the Act.
Kentucky State Board of Medical Licensure, supra at 956, 957. (Emphasis added.)
These cases are clearly distinguishable from the facts presented in this appeal. As we noted in OAG 78-626, an official's schedule is akin to a workpaper or preliminary draft or note. See also OAG 84-342. Although it records the Governor's activities, it does not represent final action of the Governor's Office. Unless the schedule is incorporated into or becomes a part of final action of that Office, it remains excluded from public inspection under KRS 61.878(1)(h). We can conceive of few, if any, occasions when the Governor's schedule would be incorporated into a document evidencing final action of his Office. Rather, it is among
"the tools which [the Governor] uses in hammering out official action within the function of his Office." OAG 78-626, at p. 2.
Although there are no Kentucky cases directly on point, it is instructive to note that the California Supreme Court has addressed this issue under its Public Records Act, and concluded that the public's interest in disclosure of the Governor's appointment calendars is outweighed by the countervailing interest in nondisclosure. In Times Mirror Company v. Superior Court of Sacramento, Cal., 813 P.2d 240 (1991), the court held that the Governor's Office properly withheld the Governor's appointment calendar under the "public interest" exemption,1 reasoning that although the calendar was not covered by California's corresponding "preliminary documents" exception,2 its disclosure would jeopardize the decisionmaking, or "deliberative process," which that exemption was intended to protect, by inhibiting access "to the broad spectrum of persons and viewpoints which he requires to govern effectively." Times Mirror Co., at 248. Continuing, the court observed:
If the law required disclosure of a private meeting between the Governor and a
1West's Ann. Cal. Gov. Code 6255, the catchall "public interest" exemption, provides in full:
The agency shall justify withholding any record by demonstrating that the record in question is exempt under the express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.
2West's Ann. Cal. Gov. Code 6254(a), the "preliminary documents" exception, exempts "Preliminary drafts, notes, or interagency or intra-agency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding such records clearly outweighs the public interest in disclosure . . . ." (Emphasis added.) Kentucky's preliminary documents exception, codified at KRS 61.878(1)(h), does not contain the qualifying language, and is therefore more far reaching, extending, in our view, to the Governor's calendar.
politically unpopular or controversial group, that meeting might never occur. Compelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Governor's consideration. Even routine meetings between the Governor and other lawmakers, lobbyists or citizens' groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press.
Times Mirror at 251. The court therefore concluded that the public interest served by not disclosing the Governor's appointment calendar clearly outweighed the public interest in disclosure.
This Office has recognized that KRS 61.878(1)(h) and (i) are intended to insure the integrity of an agency's decision making process by protecting its pre-decisional documents. OAG 91-108. The purpose underlying these exceptions may thus be analogized to the purpose underlying the exception to the California Public Records Act which was deemed to authorize nondisclosure of the Governor's appointment calendar in Times Mirror Co., supra. Here, as in Times Mirror Co., disclosure of the Governor's schedule would jeopardize the decision-making process by inhibiting access to divergent opinions and by restricting the free exchange of ideas. To compel disclosure in this instance would be tantamount to depriving the Governor of one of the essential "tools" he uses "in hammering out official action." OAG 78-616, at p. 2.
In sum, it is our opinion that KRS 61.878(1)(h) authorizes nondisclosure of the entire record. The Governor's schedule is a preliminary document which does not represent final agency action, and it has not been incorporated into final agency action.
We believe that there may be other compelling reasons why all or part of the Governor's schedule may properly be withheld. For example, KRS 61.878(1)(d) permits a public agency to withhold "[p]ublic records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth." It is entirely possible that the Governor's schedule contains notations relative to meetings with previously undisclosed business or industrial
prospects. In addition, KRS 61.878(1)(a) permits a public agency to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal property." As we noted at p. 3 of OAG 78-626, persons who call upon a public official may have a right of privacy as to their contact with that official. Nevertheless, we believe that KRS 61.878(1)(h) authorizes nondisclosure of the entire record, and therefore decline to address this and other exceptions which might have been invoked by the Governor's Office.
Mr. Fleischaker may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. J. Patrick Abell
Office of the Governor
700 Capitol Avenue
Frankfort, Kentucky 40601
Mr. Tom Loftus
Frankfort Bureau Chief
The Courier-Journal Frankfort Bureau
614-B Shelby Street
Frankfort, Kentucky 40601
Hon. Jon Fleischaker
Wyatt, Tarrant & Combs
Louisville, Kentucky 40202