96-ORD-021

NOT TO BE PUBLISHED

96-ORD-21

January 23, 1996

In re: Eric G. Farris/Workforce Development Cabinet

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Workforce Development Cabinet's denial of Eric G. Farris's October 18, 1995, request for copies of records of the screening committee for the Kentucky Tech-Jefferson Campus director's position. Specifically, Mr. Farris requested copies of:

1. [A]ll correspondence, documentation, memoranda, working notes, abstract and committee minutes related to the selection/screening committee . . .[;]

2. [A]ll action taken to this point in time.

On behalf of the Cabinet, Beverly H. Haverstock, general counsel, denied Mr. Farris's request. She maintained that the screening committee is not a public agency for purposes of the Open Records Act. [1] Ms. Haverstock explained:

The committee was created by Mr. Roye Wilson, Regional Director of the Northwest Region of the Kentucky TECH System. Mr. Wilson solicited volunteers from the school community who interface with the school and who were willing to serve as a screening committee to assist him in recommending to the appointing authority, the Commissioner of the Department for Technical Education, a person or persons for appointment to the school director's position. It should be noted that the Commissioner has authority to appoint without a committee recommendation if she deems it to be in the best interest of the Commonwealth.

The only public official authorized by statute to act in the filling of positions in the Department for Technical Education is the appointing authority, the Commissioner. The Regional Director, Mr. Roye Wilson, is not in a policy-making position. He is a state employee with merit status, who implements policy and may make preliminary recommendations to the appointing authority in hiring decisions. The committee created by Mr. Wilson is twice removed from any official action taken by the agency. The committee is not created by statute, nor appointed by a state official. It is not charged with responsibilities for state functions. Nor is this committee under the control of any state agency or authority. The committee receives no state funds. The committee is made up of persons who represent various entities, both public and private, who have an interest in working for and with the school's training programs.

Arguing in the alternative, Ms. Haverstock asserted that if the Attorney General determines that the committee is a public agency, the records requested by Mr. Farris are nevertheless exempt pursuant to KRS 61.878(1)(a), inasmuch as they contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and KRS 61.878(1)(j) inasmuch as they represent preliminary recommendations and preliminary memoranda in which opinions are expressed.

We are asked to determine if the Workforce Development Cabinet violated the provisions of the Open Records Act in denying Mr. Farris's request on the grounds that the screening committee for the Kentucky Tech-Jefferson Campus director's position is not a public agency. If we answer this question in the affirmative, we must then decide if the Cabinet properly relied on KRS 61.878(1)(a) and (j) in denying the request. For the reasons set forth below, we conclude that the screening committee is a public agency within the scope of KRS 61.870(1)(j). The Cabinet having failed to postulate any privacy interest implicated by the disputed records, we reject its argument that the records are exempt per KRS 61.878(1)(a). With respect to its final argument, we conclude that the Cabinet properly relied on KRS 61.878(1)(j) relative to any correspondence, documentation, memoranda, working notes, and abstracts which contain preliminary recommendations and opinions, as well as unapproved committee minutes, but that any such records which reflect final committee action must be disclosed, as must any approved committee minutes, since these records have forfeited their preliminary characterization.

KRS 61.870(1) defines the term “public agency.” That statute provides:

`Public agency' means:

(a) Every state or local government officer;

(b) Every state or local government department, division, bureau, board, commission, and authority;

(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;

(e) Every state or local court or judicial agency;

(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;

(g) Any body created by state or local authority in any branch of government;

(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;

(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;

(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection; and

(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.

If an entity falls within one or more of the eleven subsections of this definition it is subject to the Act, and is required to comply with its procedural and substantive requirements. To resolve the threshold issue presented in this appeal, we must examine how the screening committee was created and the applicability of KRS 61.870(1)(j) to that entity.

As noted, KRS 61.870(1)(j) defines a public agency for purposes of the Open Records Act as:

This expansive definition was one of many changes wrought by the 1992 General Assembly in the area of Open Records. It is consistent with the rules announced by the Kentucky Supreme Court in Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987) and Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681 (1992). In Presidential Search Committee, supra, the Court reversed the decision of the lower court, which had held that the Presidential Search Committee was not subject to the Open Meetings Act because it had only advisory powers and was not a legislatively created body, and ruled that the Committee was a public agency for purposes of the Open Meetings Act. The Court concluded:

It is the opinion of this court that the statute in question, perhaps inartfully drawn, means that a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. The Board of Trustees of the University of Kentucky is created by statute--viz., KRS 164.130, et seq.--so that the Presidential Search Committee, which was created, in turn, by formal action of the Board of Trustees, is a public agency and therefore subject to the provisions of KRS 61.805, et seq. Any other holding would clearly thwart the intent of the law.

Presidential Search Committee, at 806.

In Kentucky State University Foundation, supra, the Court extended this reasoning to the Open Records Act, holding:

An interpretation of KRS 61.870(1), which does not include the Foundation as a public agency, is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection, all records in the custody of public agencies by whatever label they have at the moment. Statutes are to be interpreted with a view to promote their objects and to carry out the intent of the legislature. KRS 446.080. Cf. Lexington Herald Leader v. University of Kentucky, Ky., 732 S.W.2d 884 (1987) which dealt with the Open Meetings Act but reflects the legislative intent embodied in similar laws and noted that the clear intent of the law was that the public be informed.

Kentucky State University Foundation, at 24. In enacting KRS 61.870(1)(j), the General Assembly laid to rest any lingering confusion about the broad scope of these laws.

Prior to amendment of the Open Records Act, this Office had adopted the reasoning of the Kentucky Supreme Court in Presidential Search Committee, at 682. In OAG 89-25, we held that a committee of citizens appointed by the superintendent of a board of education, on his own initiative and without formal direction of the Board, to advise him on redistricting school boundaries, was a public agency and therefore subject to the Open Meetings Act. Similarly, in OAG 91-54, we held that a committee appointed by a county judge/executive to advise on planning and zoning matters was a public agency. We reasoned:

A fiscal court is clearly a public agency, as defined by KRS 61.805(2), OAG 75-280, and the committee or advisory body created by it or by the order of the County Judge/Executive, is a public agency subject to the provisions of KRS 61.805, et seq. OAG 89-25 (modifying OAG 78-571).

See also, OAG 92-32 (holding that a telecommunications committee created by a fiscal court was a public agency under the rule announced in Presidential Search Committee, supra). We believe that these OAG's, along with the cited court decisions, have a direct bearing on the outcome of this appeal.

Particularly apposite is this office's decision in 92-ORD-1301. There we concluded that a program review assessment committee, created by the Workforce Development Cabinet's Technical Education Regional Director, was a public agency. At page 5 of that decision, we observed:

The Cabinet for Workforce Development is created by KRS 151B.020, and the Department for Adult and Technical Education by KRS 151B.025. Hence, these entities fall within the definition of a “public agency” set forth at KRS 61.870(1)(f) for Open Records purposes. The Program Review Assessment Committee, which was created, in turn, by the Cabinet for Workforce Development Technical Education Regional Director, is a “public agency” within the meaning of . . . KRS 61.870(1)(j) and is therefore subject to the provisions of [the Open Records Act].

92-ORD-1301 is dispositive of the first issue in this appeal. The screening committee is an advisory body created by the Technical Education Regional Director for the Northwest Region, and like the program review assessment committee in 92-ORD-1301, falls within the definition of public agency found at KRS 61.870(1)(j). To borrow the language of the court in Kentucky State University Foundation at 682, an interpretation of KRS 61.870(1)(j) which does not include the screening committee “is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law.” We therefore conclude that the Workforce Development Cabinet improperly denied Mr. Farris's request on the grounds that the screening committee is not a public agency for purposes of the Open Records Act. [2]

Having concluded that the committee is a public agency for purposes of the Open Records Act, we next examine the applicability of the cited exemptions, KRS 61.878(1)(a) and (j) to its records.

In denying Mr. Farris access to committee records, the Cabinet did little more than cite the ostensibly relevant exception to public inspection. KRS 61.878(1)(a) exempts from the mandatory disclosure provisions of the Open Records Act:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

An agency can properly withhold a record under this exception only if it can establish that “the subject information is of a `personal nature' . . . [and that] public disclosure `would constitute a clearly unwarranted invasion of personal privacy.” Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994) citing Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky. 826 S.W.2d 324 (1992). “This latter determination,” the court observed in Zink:

entails `a comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.

The basis for denial must therefore be “articulated in terms of the requirement of the statute.” OAG 89-20, p. 3.

It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof in sustaining its action imposed on the agency under KRS 61.880(2)(c). The Cabinet does not identify, in general or otherwise, the nature of the records implicated by Mr. Farris's request for which they invoke KRS 61.878(1)(a), nor does it explain how their disclosure would constitute a clearly unwarranted invasion of personal privacy. Having failed to articulate the basis for denial of Mr. Farris's request in terms of the requirements of KRS 61.878(1)(a), we are left with no alternative but to order the disclosure of those records with the following important caveat.

The Cabinet asserts, as its final basis for denial, that certain of the records which Mr. Farris seeks contain preliminary recommendations and preliminary memoranda in which opinions are expressed, and are therefore excluded from public inspection by operation of KRS 61.878(1)(j). That exemption authorizes the nondisclosure of:

Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

This exception is intended to protect the integrity of the agency's internal decision making process by encouraging the free exchange of opinions and recommendations. It has thus been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. The purpose underlying this exemption is discussed at page 4 of OAG 88-85, wherein this office 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, however, predecisional documents are incorporated into final agency action, they are not exempt.

This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the city police department were exempt from public disclosure as preliminary documents. The court reasoned:

It is the opinion of this court that subsections (g) and (h) [now codified as subsections (i) and (j)] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.

Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.

City of Louisville, at 659. In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection.

To the extent that any correspondence, documentation, working notes, and abstracts generated by the committee contain preliminary recommendations or consist of preliminary memoranda in which opinions are expressed, which were not incorporated into final agency action, to wit the selection of the Kentucky Tech-Jefferson Campus director by the Commissioner of the Department for Technical Education, the Cabinet properly withheld these records pursuant to KRS 61.878(1)(j). Similarly, unapproved minutes of committee meetings were properly withheld as preliminary records. However, any such records which were incorporated into final action by the Commissioner, as well as approved committee minutes, must be disclosed insofar as these records have forfeited their preliminary characterization.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.

A. B. CHANDLER III

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

aps/1409

Distributed to:

Hon. Beverly H. Haverstock

General Counsel

Workforce Development Cabinet

2nd Floor

Capital Plaza Tower

500 Mero Street

Frankfort KY 40601

Hon. Eric G. Farris

Becker, Farris & Gallagher

200 S. Buckman Street

P. O. Box 460

Shepherdsville KY 40165-7185

Footnotes

[1] Ms. Haverstock also maintained that the committee is not a public agency for purposes of the Open Meetings Act. Because the issue of the committee's status under the Open Meetings Act has not been raised, we do not address this issue.

[2] Because the screening committee clearly falls within the definition of public agency found at KRS 61.878(1)(j), we do not address the applicability of other definitional subsections except to note, in passing, that the committee may also qualify as a public agency under KRS 61.870(1)(i) which includes:Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection; by a member or employee of such a public agency; or by any combination thereof[.]