NOT TO BE PUBLISHED

96-ORD-122

May 23, 1996

In re: Annette M. Kubiske/Hardin County Schools

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Hardin County School's denial of Ms. Annette M. Kubiske's open records requests to inspect copies of recommendations given by an outside consultant, hired by the Hardin County Board of Education, to do a study of the salary, extended salary or supervision schedules for the organizational and pay structure of the administrators, classified staff and teachers.

Ms. Lois W. Gray, Superintendent, Hardin County Schools, relying on KRS 61.878(1)(i) and (k), denied Ms. Kubiske's request stating that the consultant's study was not yet completed and any of his recommendations or proposed recommendations would be of a preliminary nature and not subject to the open records requirements until they were presented to and approved by the Hardin County School Board. Ms. Gray indicated that she would be glad to share a copy of the study when it is ready to submit to the Board for approval.

In addition, after receipt of Ms. Kubiske's letter of appeal, Ms. Kimberly Winkenhofer Shumate, an attorney, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, provided this office with a response on behalf of the Hardin County Schools to the issues raised in this appeal. Ms. Shumate states that at the time of Ms. Kubiske's requests and still at the present time (May 13, 1996), the consultant was still working on his report and recommendations and that, pursuant to KRS 61.878(1)(j), the study and recommendations were still preliminary records and exempt from disclosure until the study is finalized and adopted or incorporated into final action by the School Board.

Ms. Shumate indicates that the Hardin County Schools have attempted to make school employees a part of the investigative process and analysis by the consultant and have allowed school representatives and the consultant to review his ideas in progress with employees to receive reaction and input before a final analysis is made. However, Ms. Shumate reiterates that as of the present date, the records that Ms. Kubiske requests either do not exist or are preliminary in nature.

Ms. Shumate states that when Ms. Gray has received the consultant's study, she will use that report and her own knowledge and expertise to form a recommendation to the School Board. When Ms. Gray has prepared her recommendations, she will publicize it in the advance packets for the Board, which will be made available to Ms. Kubiske, and any other taxpayer, citizen, media or other person requesting inspection.

We are asked to determine whether the Hardin County School's response was in accord with the Open Records Act. For the reasons which follow, we conclude that the denial was proper and consistent with the Act.

KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act, “[p]reliminary 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 case 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) [until recently codified as subsections (h) and (i) and 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, supra 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. See also, University of Kentucky v. Courier-Journal and Times, Ky., 830 S.W.2d 373 (1992), Gardiner Harris v. City of Louisville, Ky. App., 42 K.L.S. 10, 7 (9/1/95) (motion for discretionary review pending).

This office has repeatedly recognized the propriety of withholding documents containing preliminary recommendations and memoranda submitted to school boards under KRS 61.878(1)(j), until such time as they are acted upon and adopted by the board. 92-ORD-1791 and opinions cited therein. Although the Superintendent, in her response to Ms. Kubiske, cited KRS 61.787(1)(k), it is clear from her explanation that this was a miscite and she was relying on KRS 61.878(1)(j). We need not address the applicability of KRS 61.878(1)(i) as KRS 61.878(1)(j) is dispositive of this appeal.

In OAG 86-54, we held that an administrative memorandum prepared by the superintendent for submission to the board is not a public record until it is incorporated into a final action by the board.

In the instant case, neither the consultant's recommendations nor his study are final. Even when it is finalized and presented to the Superintendent, it is still a preliminary document until she either adopts or incorporates the study into her final recommendation for presentation to the Board. Accordingly, it is the decision of this office that the Hardin County Schools properly denied access to the consultant's preliminary recommendations prior to the completion of his study.

However, as noted above, the Superintendent has indicated that once the study is completed and she has reviewed the report and forms a recommendation to the Board for action, that recommendation will be made available to Ms. Kubiske and others for review in advance of the Board meeting.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/519

Distributed to:

Ms. Annette M. Kubiske

UniServ Director

Kentucky Education Association

1230 Woodland Drive, Suite 115

Elizabethtown, Kentucky 42701

Lois W. Gray, Superintendent

Hardin County Schools

110 South Main Street

Elizabethtown, Kentucky 42701

Kimberly Winkenhofer Shumate

Skeeters, Bennett, Shumate & Wilson

560 W. Lincoln Trail Blvd.

P. O. Box 610

Radcliff, Kentucky 40160