NOT TO BE PUBLISHED 

93-ORD-59

May 17, 1993

IN RE: Ron L. Walker, Jr./Cabinet for Workforce Development -

Department for Adult and Technical Education

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Cabinet for Workforce Development, Department for Adult and Technical Education, in responding to Mr. Ron L. Walker's March 8 and March 10, 1993, request to inspect certain records in the Department's custody. Those records are identified as:

Mr. Walker is an attorney representing Mr. Robinson in an appeal before the Department for Adult and Technical Education, and his request was made under the Open Records Act.

On behalf of the Cabinet for Workforce Development, Department for Adult and Technical Education, Ms. Beverly H. Haverstock denied Mr. Walker's request for program assessments in a letter dated March 15, 1993. Relying on KRS 61.878(1)(h), Ms. Haverstock maintained that these documents are "internal memoranda containing opinions and recommendations relating to the layoffs of other employees," and are therefore not public records.

Ms. Haverstock also denied Mr. Walker's request for the names and addresses of the screening committee members, advising him that the Department does not maintain records containing the addresses of the members. Ms. Haverstock argued that records containing the names of the members are exempt pursuant to KRS 61.878(1)(g) and (h), now codified and hereinafter referred to as KRS 61.878(1)(h) and KRS 61.878(1)(i). It was her position that the screening committee members are not Kentucky Tech System employees, but are instead private individuals performing a voluntary service. Ms. Haverstock observed:

Ms. Haverstock also argued that records containing the names and addresses of the screening committee members are exempt pursuant to KRS 61.878(1)(i) "in that the members of the committee are listed on a document consisting of preliminary recommendations in which opinions are expressed." She maintained that the committee's recommendations are not adopted as final action. Instead, "[t]he final agency action is adoption of the recommendation of the appointing authority, with or without a screening committee." The Department is therefore not bound by the screening committee's recommendations.

Finally, Ms. Haverstock asserted that release of the names of the screening committee members would constitute a clearly unwarranted invasion of personal privacy, in contravention of KRS 61.878(1)(a). She reasoned:

In closing, Ms. Haverstock agreed to release all screening committee documents, but indicated that the Department would mask the names appearing on the documents, other than Mr. Robinson's, to confirm that "the agency followed correct, legal procedure in considering him for vacancies as a laid-off employee."

In his letter of appeal to this Office, Mr. Walker argues that the Department, through Ms. Haverstock, improperly denied his request for the names and addresses of screening committee members. It is his position that "[t]here is no difference between the identity of these members [and] the identity of other private persons serving on a public board." Continuing, he notes that although the Department may not have the addresses of the committee members, it can obtain the information from regional directors or local administrators.

With respect to Ms. Haverstock's denial of his request for program assessments, Mr. Walker responds:

He urges this Office to issue a decision consistent with these views.

We are asked to determine if the Cabinet for Workforce Development, Department of Adult and Technical Education, properly denied Mr. Walker's request for program assessments for the last five years and documents containing the names and addresses of the members of the screening committee who interviewed his client. For the reasons set forth below, we conclude that the Department's response was only partially consistent with the Open Records Act.

We begin by noting that we are somewhat confused by Ms. Haverstock's internally inconsistent response to Mr. Walker's request for "program assessments for the last 5 years . . . ." On the one hand, she denied his request "for the reason that there are no documents known as program assessments or adopted as program assessments." On the other hand, she indicated that the Department had "provided . . . all program assessment documents relating to the layoff of Frank J. Robinson," and that the remaining program assessments are "internal memoranda containing opinions and recommendations relating to the layoff of other employees." For purposes of this appeal, we will assume that although there is no single document which is referred to as a "program assessment," the Department generates documents which, taken together, comprise a program assessment.

Ms. Haverstock argues that pursuant to KRS 151B.025, "the Department for Adult and Technical Education assesses its programs in a constant and ongoing manner." Continuing, she notes that "[p]rogram offerings change continually as such programs are dropped while others are added." "Occasionally," Ms. Haverstock explains, "when the Department makes a decision that a particular program will no longer be offered, it becomes necessary to abolish the position connected to the program." These decisions, presumably, are arrived at based on a review of the "internal memoranda containing opinions and recommendations relating to the layoffs of . . . employees"

which comprise program assessment documents. Such a decision prompted the lay off of Mr. Walker's client. Ms. Haverstock acknowledges this fact in the closing sentence of her March 18 followup letter to Mr. Walker. She states that pursuant to KRS 61.878(3), Mr. Walker has received "all preliminary memoranda having to do with program assessment which led to the layoff of Frank Robinson due to the abolition of his position."

We construe these statements to mean that some of the "internal memoranda containing opinions and recommendations" which comprise program assessment documents form the basis of, or are incorporated into, the Department's decision to abolish a program and lay off employees within the program. We acknowledge that not every recommendation or opinion is adopted. It is, however, inconceivable that no program assessment document was adopted by the Department "as the basis of its final action" within the meaning of City of Louisville v. The Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982) and Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983).

KRS 61.878(1)(h) and (i) authorize the nondisclosure of:

This Office has recently engaged in a lengthy analysis of these provisions. In 93-ORD-26, we recognized that although these provisions are intended to protect the integrity of an agency's internal decision making process by encouraging the free exchange of opinions and ideas, predecisional documents forfeit their preliminary characterization when they are adopted by the agency as part of its final action. We believe that that decision, a copy of which is attached, is dispositive of that portion of Mr. Walker's appeal pertaining to program assessment documents. To the extent that any such documents were incorporated into, or formed the basis of, the Department's decision to abolish programs and lay off employees in those programs, they lost their preliminary status and became open records.

Ms. Haverstock does not rely on any other exception to public inspection, nor does she maintain that Mr. Walker's request "places an unreasonable burden in producing public records . . . ," pursuant to KRS 61.872(6). We do not mean to suggest that the requested records do not fall within the parameters of other exceptions, or that Mr. Walker's application will not place a burden on the Department. Ms. Haverstock and the Department have not, however, sustained their statutory burden of proof relative to the invocation of any other exception to the Open Records Law. We therefore conclude that the Department must make those documents which are characterized as "program assessment" documents, and which formed the basis of its decision to abolish programs overseen by the Department for the last five years, available for inspection.

Turning to the issue of the screening committee members' names and addresses, we find that the Department is

not obligated to compile information to satisfy Mr. Walker's request. It is not required to release the addresses of the committee members since this information is not in its possession. The Department must, however, release the members' names.

Ms. Haverstock maintains that since the members are private individuals who serve voluntarily, the documents on which their names appear may be characterized as correspondence with private individuals, and are exempt from inspection pursuant to KRS 61.878(1)(h). In addition, she argues that the names appear on "rank orders," which she characterizes as preliminary recommendations in which opinions are expressed. These documents, she asserts, are exempt from inspection pursuant to KRS 61.878(1)(i).

We are not persuaded by these arguments. KRS 61.878(4) provides:

This Office has consistently recognized that when a public record contains information of an excepted and nonexcepted nature, the public agency must provide access to the nonexcepted material either by providing a copy of the record with the excepted material deleted, or by providing a list containing the nonexcepted information as derived from the records in its files. See e.g. OAG 79-275; OAG 81-309; OAG 87-56; OAG 89-78; OAG 89-90. If then the screening committee members' names are nonexcepted, the fact that their names appear on records containing excepted material does not operate to remove the entire document from the reach of the Open Records Law.

Whether the names of the committee members are excepted under KRS 61.878(1)(a) is a separate question. In 93-ORD-35, this Office held that the privacy interest of members of a teacher selection screening committee was outweighed by the public's interest in ascertaining who the members are and insuring that they are qualified to serve. At page 3 of that decision we observed:

We therefore concluded that the public agency violated the Open Records Law in withholding the names of the committee members.

The facts presented in this appeal are distinguishable from the facts presented in 93-ORD-35 only insofar as the screening committee members in the cited decision were paid the daily rate received by substitute teachers. Ms. Haverstock indicates that the interview committee members are uncompensated. This fact, standing alone, does not mandate a different conclusion than that reached in 93-ORD-35. Kentucky's courts, as well as this Office, have recognized that compensation is not an indispensible element of public office. As we observed at page 2 of OAG 75-72, "Emolument is [a] usual but not a necessary element to constitute an office." See also, Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197 (1947); Warner v. Commonwealth, Ky., 400 S.W.2d 209 (1966); 63 Am.Jur.2d Public Officers and Employees 5; McQuillin MunCorp 12.29. A person may thus fill a position in public service without compensation.

In our view, the public and private interests analyzed in 93-ORD-35 are virtually identical to those which exist in the present appeal. We conclude that that decision, a copy of which is attached, is dispositive of that portion of Mr. Walker's appeal relating to the screening committee members' names. Therefore, it is our opinion that documents containing the screening committee members' names must be made available for inspection, but that the Department may redact any exempt material appearing in those documents.

We do not believe, however, that the Department is obligated to compile information to satisfy Mr. Walker's request for the addresses of the committee members. This Office has repeatedly recognized that the Kentucky Open Records Law was not intended to provide a requester with particular "information," or to require a public agency to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335; OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the law provides for inspection of reasonably identified records. Mr. Walker's request for the addresses of the committee members may be characterized as a request for specific information, as opposed to a request to inspect reasonably described records. The Department does not have a duty to create a document containing this information.

To briefly summarize, the Department erred in failing to release program assessment documents to the extent that those documents, though initially preliminary in character, formed the basis of the Department's decision to abolish certain programs, and thus forfeited their preliminary characterization. While other exceptions to inspection may have been invoked to authorize nondisclosure of those records, and the request, as framed, might be said to place an unreasonable burden on the Department, Ms. Haverstock did not rely on any other exception, nor did she invoke KRS 61.872(6). The Department should arrange for inspection of those program assessment documents which can be said to have forfeited their preliminary characterization when they were adopted as part of its final decision to abolish certain programs.

The Department is not obligated to compile information relative to the addresses of the screening committee members, but must arrange for inspection of documents containing their names. The Department may redact any excepted information appearing on those documents, but must release the nonexcepted information. In our view, the members' privacy interest in nondisclosure is outweighed by the public's interest in ascertaining the identities of the members and insuring that they are qualified to serve on the committees.

Mr. Walker and the Department for Adult and Technical Education may challenge this decision by initiating action in

the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Attachments

Distributed to:

Hon. Beverly H. Haverstock

Department for Adult and

Technical Education

Cabinet for Workforce Development

500 Mero Street

Capital Plaza Tower

Frankfort, KY 40601

Hon. Ron L. Walker, Jr.

Brooks & Fitzpatrick

Attorneys At Law

183 North Upper Street

Lexington, KY 40507