October 25, 1994
IN RE: Courier-Journal and Louisville Times Company/Office of
the Jefferson County Judge/Executive
OPEN RECORDS DECISION
On behalf of her clients, The Courier-Journal and Louisville Times Company and reporter Michael Quinlan, Ms. Kimberly Greene appeals the actions of the Office of the Jefferson County Judge/Executive relative to Mr. Quinlan's April 13, 1994, open records request for:
1.A copy of the recently completed annual evaluation of Dr. David Cundiff, director of the Jefferson County Health Department, by the Health Board.
2.A copy of Dr. Cundiff's written response to the evaluation.
In a response dated April 15, 1994, Mr. N. Scott Lilly, First Assistant Jefferson County Attorney, denied Mr. Quinlan's request advising him:
Pursuant to KRS 61.878(1)(i)1 and Section D(1) of the Employment Agreement between Dr. Cundiff and Jefferson County, the
1KRS 61.878(1)(i) was recodified on July 15, 1994, and now appears as KRS 61.878(1)(j).
referenced performance review conducted by the Board of Health consists of preliminary recommendations and qualifies as a preliminary memorandum in which opinions are expressed regarding Dr. Cundiff's job performance for last year. Thus, the performance review is exempt from disclosure and your request to inspect it is denied.
Mr. Lilly adopted the same position with respect to Dr. Cundiff's response to the performance evaluation, arguing that it too contains opinions and recommendations and is exempt pursuant to KRS 61.878(1)(i).
In her letter of appeal to this Office, Ms. Greene asserts that Mr. Lilly misconstrues KRS 61.878(1)(i), and that he improperly characterizes the Board's evaluation of Dr. Cundiff as a preliminary document. She challenges Mr. Lilly's argument that the contract of employment between Dr. Cundiff and the County operates in tandem with KRS 61.878(1)(i) to prohibit disclosure of the evaluation. Ms. Greene observes:
Mr. Lilly argues that the contract of employment between Dr. Cundiff and the County somehow supersedes the provisions of the Open Records Act. That contract requires the Board of Health to conduct an evaluation of the director every year. Once the evaluation is completed it is sent to the County Judge-Executive, who then either accepts the evaluation or replaces it with one of his own. This contractual provision in no way alters the fact that a public agency, the Board of Health, has completed one of its public functions when it evaluates the performance of its director. On that basis alone, the public is entitled to access to the evaluation. Even if one accepted Mr. Lilly's argument that the Judge-Executive's review somehow affects the status of the Board's evaluation of Dr. Cundiff, it simply does not follow that the evaluation is still "preliminary." Judge-Executive Armstrong's concurrence with the Board of Health's evaluation resulted in Dr. Cundiff's resignation thus, the Board's evaluation clearly was the final word on
Dr. Cundiff's performance. Thus, Judge-Executive Armstrong obtained and accepted Dr. Cundiff's resignation as a result of his adoption of the evaluation by the Board of Health. If the evaluation ever could have been considered "preliminary," it certainly could not have that status after Judge-Executive Armstrong's action.
In support of these argument, Ms. Greene cites University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992), Courier-Journal and Louisville Times Co. v. Board of Education of Bullitt County, Ky.App., No. 93-CA-0896 (April 1, 1994), petition for discretionary review pending, and Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App. 663 S.W.2d 953 (1983). She advances the same arguments with respect to Dr. Cundiff's response to the Board's evaluation, characterizing the response not as a preliminary document, but as his "final word on [the] evaluation."
In a follow-up letter dated May 18, 1994, Mr. Lilly elaborates on the County's position. He distinguishes the cases upon which Ms. Greene relies, and argues that the facts of this appeal are analogous to the facts presented to us in OAG 87-23. Continuing, he observes:
There, your office held documents pertaining to the investigation of a teacher containing preliminary recommendations and preliminary memoranda in which opinions were expressed were exempt because they did not set forth the final decision of the Board of Education or the Superintendent relative to the teacher. Similarly, in the instant situation, since only the County Judge is the final arbiter of Dr. Cundiff's employment status, the Board of Health can merely act in an advisory capacity and recommend, based upon its opinions, what action, if any, the County Judge/Executive should take. Thus, the Board of Health's performance evaluation falls squarely within the exemption set forth in KRS 61.878(1)(i).
By the same token, Mr. Lilly maintains, Dr. Cundiff's response, although it is his "final word," is a preliminary document
containing opinions and recommendations "because only the County Judge/Executive can finally formulate policies with respect to Dr. Cundiff's employment status . . . ."
The question presented in this open records appeal is whether the Jefferson County Judge/Executive properly relied on KRS 61.878(1)(i) in denying Mr. Quinlan's request for Dr. Cundiff's annual evaluation and his written response to that evaluation. For the reasons set forth below, we conclude that the County Judge/Executive erred in refusing to disclose the Board's evaluation, but properly withheld Dr. Cundiff's written response to the evaluation.
KRS 61.878(1)(i) authorizes the nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions, are expressed or policies formulated or recommended." In OAG 90-1, we interpreted this provision in the context of an appeal which closely resembles this appeal. There, a Police Administrative Advisory Committee prepared a performance appraisal of the Louisville Police Chief under the mandate of Sections 4(a) and (c) of City Ordinance 117. Section 4(d) of the ordinance provided:
Based on the information provided, within thirty days, the Mayor will concur with the performance appraisal as submitted or will issue his own appraisal of the performance of the Chief of Police. If the Mayor does not substantially concur with the per-
formance appraisal as submitted, he will make public that appraisal and his own appraisal.2
Because the Mayor did not make his own appraisal of the performance of the police chief, this Office opined:
There was . . . nothing for the performance appraisal prepared by the Police Administrative Advisory Committee to be
2Although not critical to our decision, we expressed the view that this language envisions the performance appraisal of the police chief being made available to the public.
considered as preliminary . . . to. Accordingly, the appraisal could not be properly characterized as "preliminary recommendations," or as a "preliminary memorandum," within the meaning of KRS 61.878(1)[(i)].
OAG 90-1, p. 5. Likening the facts presented to this Office in OAG 90-1 to the facts presented to the Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App. 637 S.W.2d 658 (1982), we observed:
[T]he "final decision" in City of Louisville may be equated with an appraisal of the performance of the police chief prepared by the Director of Public Safety, or the Mayor. Once the time for these officials to prepare appraisals passed (without an appraisal having been prepared and released to the public), any preliminary character within the meaning of KRS 61.878(1)[(i)], the Committee's appraisal might have had, expired.
OAG 90-1, p. 6. Thus, we concluded:
[The] right . . . to inspect an appraisal of the performance of the Police Chief, may not be denied upon the whim of non-decision. In denying inspection of a record upon the ground it constituted preliminary recom-
mendations, or a preliminary memoranda, when it was not preliminary to a substantive decision (here a performance appraisal of the Louisville Police Chief), and . . . was not preliminary to anything, the City of Louisville failed to act consistent with KRS 61.870 to 61.884.
OAG 90-1, p. 6.
We believe that OAG 90-1 is dispositive of that portion of Mr. Quinlan's request dealing with the Board's evaluation of Dr. Cundiff. Pursuant to Section (D)(1) of Dr. Cundiff's employment contract, the Board of Health annually reviews his performance and reports its findings and recommendations to the County Judge/Executive. In language
which is virtually identical to Section 4(d) of City of Louisville Ordinance 117, Section D(4) of the contract provides:
Based on the information provided, by April 1 of each year the County Judge/ Executive will concur with the performance appraisal as submitted or will issue his own appraisal of the performance of the Director of Public Health Services. If the County Judge/Executive does not substantially concur with the performance appraisal as submitted, he will make public that appraisal and his own appraisal.
It is our understanding that the County Judge/Executive did not issue his own appraisal by April 1, but instead concurred with the Board's appraisal, resulting in Dr. Cundiff's resignation. Since the County Judge/Executive did not make his own appraisal, "[t]here was . . . nothing for the performance appraisal prepared by the [Board of Health] to be considered as preliminary . . . to." OAG 90-1, p. 5. Once the time for the County Judge/Executive to prepare an appraisal had passed, without an appraisal having been prepared and released to the public, the preliminary character of the Board's appraisal expired. OAG 90-1, p. 6. We are therefore not persuaded by Mr. Lilly's argument that the Board of Health's recommendations and opinions with respect to Dr. Cundiff are not the final assessment of his status. Here, the Board's appraisal operated as the "final decision" of the County Judge/Executive per City of Louisville, supra, and OAG 90-1.
As we noted at page 4 of 92-ORD-1145, we do not, in so holding, establish a rule of general application vis-a-vis performance appraisals. Nor do we depart from any opinion previously issued by this Office. We continue to ascribe to the view that, in general, an appraisal is a matter of opinion and does not represent any final action on the part of the agency. KRS 61.878(1)(i). Our conclusion in the present appeal is limited to the unique facts of this case, which are closely analogous to those presented in OAG 90-1, and the particular language of Dr. Cundiff's employment contract.
We do not believe that this reasoning can be extended to Dr. Cundiff's response to his performance evaluation. This Office has long recognized that KRS 61.878(1)(i) protects from disclosure preliminary memoranda containing the opinions,
observations, and recommendations of public employees. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97; OAG 93-ORD-26. The exemption is intended to protect the integrity of an agency's decision-making process by encouraging the free exchange of opinions and ideas. Thus at page 4 of OAG 88-85, we observed:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, of course, the predecisional documents are incorporated into final agency action, they are not exempt.3 Hence, at page six of OAG 90-1, we held that inspection of "addenda, letters, and other documents" pertaining to the police chief's appraisal must be permitted if they were "adopted by the appraisal."
Nor do we believe that the Court of Appeals' holding in Courier Journal and Louisville Times Co. v. Board of Education of Bullitt County, supra, alters these conclusions. Neither this Office, nor the Court of Appeals, addressed the applicability of KRS 61.878(1)(i) to the performance evaluation at issue in that appeal. Rather, we focused on the applicability of KRS 61.878(1)(a), the privacy exception, to
3In OAG 90-97, we noted that the fact that the recommendations are final as to the person making them is irrelevant. Most recommendations are final in the sense that the persons making them do not intend to make subsequent recommendations. "The word 'preliminary' as used in KRS 61.878(1)[(i)] obviously refers to recommendations made by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation is the first, second or last recommendation if the state agency has not yet taken final action." OAG 90-97, p. 4; nor, we might add, if the agency has taken final action contrary to the recommendations contained in the preliminary memorandum.
the document, and concluded that on the narrow facts presented the public's interest in disclosure of the school superintendent's evaluation outweighed his privacy interest. The Bullitt County Board of Education did not raise, nor did we consider, KRS 61.878(1)(i). We do not believe that this case can be read as a wholesale repudiation of a long-standing position of this Office and the courts. Unless they are incorporated into, or adopted as the basis of, final agency action, opinions and policy recommendations are forever exempt from public inspection. See, e.g., City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992).
The Courier-Journal improperly equates the terms "preliminary drafts" and "preliminary memoranda." Clearly, Dr. Cundiff's response to the Board of Health's evaluation was not a rough "draft." Compare, OAG 89-34 (dealing with a draft report submitted for review and written comment). Rather, it was a polished and fully developed memorandum containing Dr. Cundiff's opinions and observations relative to the Board's evaluation, and submitted in response to and rebuttal of that evaluation. Although it was Dr. Cundiff's final word on the subject, the response was preliminary in the sense that it was not adopted by the County as the basis of its final decision. Obviously, the County Judge/Executive did not concur with Dr. Cundiff but instead adopted the Board's opinions and recommendations. Dr. Cundiff's response having been rejected by the County Judge/Executive, it remains a preliminary document exempt from public inspection pursuant to KRS 61.878(1)(i).
We acknowledge the inequity in ordering the County Judge/Executive to disclose the Board's evaluation and permitting him to withhold Dr. Cundiff's response. In our view, the County Judge/Executive should afford Dr. Cundiff the opportunity to defend his record through the release of his written response. This Office has long recognized that the exceptions to the Open Records Law are permissive rather than mandatory. See, e.g., OAG 79-275. Thus, an agency may, in its discretion, release otherwise exempt public records. "The exemptions are convenient shields which public officials may use when they desire to do so, not restrictions to keep them from opening up records in their custody." OAG 79-275, p. 3. Although the County Judge/Executive may properly withhold the
director's response pursuant to KRS 61.878(1)(i), we urge him to release it in fairness to Dr. Cundiff.
The Jefferson County Judge/Executive and The Courier-Journal may challenge this decision by initiating action in the appropriate circuit court. 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. N. Scott Lilly
Jefferson County Attorney
1001 Fiscal Court Building
Louisville, KY 40202
Hon. Kimberly K. Greene
Wyatt, Tarrant & Combs
Louisville, KY 40202
Hon. David L. Armstrong
Jefferson County Judge/Executive
Jefferson County Courthouse
527 West Jefferson Street
Louisville, KY 40202