TO BE PUBLISHED 

March 5, 1993

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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

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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:

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:

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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:

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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:

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

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"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: