TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

94-ORD-89

 

July 19, 1994

 

 

 

 

 

 

IN RE: The State Journal/Frankfort Electric and Water Plant

 

 

OPEN RECORDS DECISION

 

 

Ms. Madelynn Coldiron, staff writer for The State Journal, challenges the Frankfort Electric and Water Plant Board's actions relative to her June 8, 1994, request for copies of employee responses to the Board's recently approved Job Classification and Pay Compensation Plan. On behalf of the Board, Business Manager David Sandidge denied Ms. Coldiron's request, advising her as follows:

 

Currently we are not prepared to publicly release the preliminary draft documents being reviewed by our Management staff. Upon completion of Management's review of the preliminary drafts, the Board will be advised of issues as indicated in writing by Plant Board employees. In response, the Board may consider formal reconsideration action related to the Job Classification and Pay Compensation Plan.

 

This issue concerning the timing of releasing these documents has been discussed with our Attorney, Robert Bowman. We are concerned that some of the documents contain information of a personal nature, as such he agreed that releasing documents to the media at a later date would be appropriate.

 

As soon as the requested documents become available (after any information of a personal nature have [sic] been excluded) Monta Traylor will contact you. You may then make arrangements with Ms. Traylor to pick up the requested copies. A charge of 15 cents for each copy will be required.

 

Mr. Sandidge did not identify the specific exemptions to public inspection upon which he relied, nor did he elaborate on the assertion that the documents contain information of a personal nature.

 

It is our understanding that the Board approved the Job Classification and Pay Compensation Plan on May 10, 1994, establishing a written personnel outline with job descriptions and pay ranges. On May 27, 1994, the Board requested written employee responses to the Plan, to be submitted no later than June 7, 1994. That deadline was later extended to June 13, 1994. Thus, the Board encouraged employees "having concerns, questions, and or unresolved issues related to the implementation of the . . . Plan" to respond in writing. It is these responses which The State Journal wishes to inspect.

 

In her letter of appeal to this Office, Ms. Coldiron challenges the Board's assertion that the letters are "preliminary drafts," and that they contain "information of a personal nature." She observes:

 

The first reason for the denial is because the board's staff is writing a report summarizing the employee letters and therefore the agency considers them "preliminary draft documents." Obviously, I disagree. A letter is a letter.

 

It is important to note that the board took final action May 10 approving the plan. I have enclosed a clipping verifying that, though I do not have the board's minutes. It would appear the employee input is somewhat after the fact.

 

With respect to Mr. Sandidge's argument that the records contain information of a personal nature, Ms. Coldiron notes:

 

I am not certain what this refers to, although the board's attorney told me in a telephone conversation that some letters included comments critical of other employees. I question whether this is "information of a personal nature" or simply criticism that the board does not want to be made public. Whatever the reason, I don't think critical remarks about job performance fall within the legitimate exclusions of the Open Records Act.

 

We are asked to determine if the Frankfort Electric and Water Plant Board properly denied The State Journal's request for employees' written responses to the Board's Job Classification and Pay Compensation Plan. For the reasons set forth below, we conclude that the Board's response was both procedurally and substantively deficient.

 

We begin by noting that the Board's denial of Ms. Coldiron's request was procedurally deficient. KRS 61.880(1) provides, in part:

 

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

 

In its denial, the Board failed to comply with the three day deadline for agency response to an open records request, and to include a statement of the specific exception authorizing the withholding of the records. Such noncompliance constitutes a

procedural violation of the Open Records Law. We urge the Board to review the cited provision to insure that future responses conform to the Law.

 

Turning to the substantive issues raised in this appeal, we find that the Board's apparent reliance on KRS 61.878(1)(a) and KRS 61.878(1)(i) is misplaced. In 93-ORD-82, this Office addressed the applicability of KRS 61.878(1)(i) to post-decisional documentary material. Citing the federal analogue to KRS 61.878(1)(i), which is found at 5 U.S.C. 552(b)(5), and Renegotiation Board v. Grumman Aircraft Engineering Corporation, 421 U.S. 168, 44 L.Ed.2d 57, 95 S.Ct. 1491 (1975), we noted that in order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies are formulated. Since the underlying purpose of both the state and federal exception is to permit agency decision-makers to receive the benefit of frank and uninhibited discussion of policy matters by agency staff prior to reaching a final decision, they cannot be invoked to support a decision to withhold post-decisional memoranda. The Board took final action on its Job Classification and Pay Compensation Plan on May 10. It solicited employee response on May 27. It cannot, therefore, be persuasively argued that these documents are "preliminary" within the meaning of KRS 61.878(1)(i).

 

With respect to its assertion that the responses contain information of a personal nature, we find that the Board failed to meet its statutory burden of proof in sustaining its denial of The State Journal's request. KRS 61.880(2); KRS 61.882(3). Although Ms. Coldiron was orally

advised that the responses "included comments critical of other employees," Mr. Sandidge's response is devoid of any such explanation. Moreover, we fail to see how a request for "question, concerns, or unresolved issues that affect you," relative to the Plan, would elicit criticism of other employees. While this Office has recognized that records containing employees' opinions of their co-workers may properly be withheld pursuant to KRS 61.878(1)(a), (see, e.g., OAG 85-135), we believe that the Board has failed to establish that the disputed records contain such opinions and comments. As we have repeatedly recognized, mere invocation of the exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3). 93-ORD-110; 93-ORD-86; 93-ORD-43; 92-ORD-1020. In the present appeal, the Board not only failed to adequately explain how the exception applied, it failed to cite the exception. We therefore conclude that the Board did not meet its burden of proof in sustaining its action, and must immediately release the requested records to Ms. Coldiron.

 

The Frankfort Electric and Water Plant Board 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.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

 

 

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Distributed to:

 

Mr. David Sandidge

Business Manager

Frankfort Electric and Water Plant Board

315 West Second Street

P. O. Box 308

Frankfort, KY 40602

 

Ms. Madelynn Coldiron

Staff Writer

The State Journal

321 West Main

P. O. Box 368

Frankfort, KY 40602

 

Hon. Robert Bowman

Attorney At Law

222 W. Main St.

Frankfort, KY 40601