NOT TO BE PUBLISHED
97-ORD-97
June 24, 1997
In re: Liz Natter/Cabinet for Economic Development
Open Records Decision
The question presented in this appeal is whether the Cabinet
for Economic Development properly relied on KRS 61.878(1)(i) and
(j) in denying Liz Natter's February 14, 1997, request for
"any reports, records, or documents generated in the last
ten years of or relating to any site evaluation(s) for industrial
sites in Union County, Kentucky." Relying on KRS
61.878(1)(c), (i), and (j), the Cabinet characterized the
disputed records as "preliminary drafts and recommendations,
correspondence with private individuals or material which is
confidential." For the reasons which follow, we affirm, in
part, the Cabinet's denial of Ms. Natter's requests.
Nevertheless, we find that its response was substantively
deficient and reflects a liberal application of KRS 61.878(1)(i)
and (j) which the language of those exceptions, coupled with the
statement of policy codified at KRS 61.871, do not authorize.
We begin by noting that the Cabinet's response was
substantively deficient insofar as it failed to comply with the
requirements of KRS 61.880(1). That statute provides that:
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.
In Edmondson v Alig, Ky. App., 926 S.W.2d 856 (1996),
the Kentucky Court of Appeals commented on the public agency's
obligations under this provision when the agency believes that
requested records are not subject to disclosure. At page 858 of
that opinion, the court observed:
The language of the statute directing agency action is exact.
It requires the custodian of records to provide particular and
detailed information in response to a request for documents.
. . . [A] limited and perfunctory response to [a] request [does
not] even remotely compl[y] with the requirements of the Act -
much less . . . amount [ ] to substantial compliance.
Id. at 858 (emphasis added).
In its original response, the Cabinet relied on KRS
61.878(1)(c), (i), and (j) as the statutory bases for denying Ms.
Natter access to the disputed records. In a supplemental response
to Ms. Natter's appeal, the Cabinet focused on the latter two
exceptions, and elaborated on their application to the types of
records withheld, explaining:
Ms. Natter directs her request to site evaluations. As
background information, in this instance, Union County requested
the Cabinet's assistance in preparing site evaluations for
proposed industrial sites in the county. The Division of Site
Evaluation, a division of the Job Development department in the
Cabinet for Economic Development, is responsible for responding
to such requests from counties, persons or entities, to
investigate geographic sites for possible economic development.
The Division of Site Evaluation evaluates the proposed site
according to the criteria set forth on "The Physical
Characteristics of a Good Site," . . . which was provided to
Ms. Natter pursuant to her request.
During the Division's process of performing an evaluation on
the geographic site, preliminary correspondence between private
individuals may occur which would be protected from disclosure
pursuant to KRS 61.878(i) [sic]. Any reports, records or
documents generated by the Division of Site Evaluation pursuant
to a county, person or other entity's, [sic] request are
preliminary in that they do not represent any final action of a
public agency. Rather, any reports, records or documents
generated are preliminary correspondence, recommendations or
memoranda in which opinions as to the desirability of the site
for industrial development are expressed. (See KRS 61.868(j))
[sic].
Any report, record or document generated by the Division of
Site Evaluation which is then sent to the person regarding the
evaluation may be utilized by that person to make the decision of
whether to pursue or not pursue further action. Such action may
include pursuit of funding of a particular site, at the local,
state or federal level, or further investigation based upon the
opinions expressed. Obviously, the Division of Site Evaluation is
performing a service to anyone who holds a piece of property and
who wishes expert advice on ways to market or improve the
property for development. No decisionmaker at the Cabinet for
Economic Development (or any attached Board) relies strictly on
this Division's evaluations in making funding decisions.
Therefore, the reports, records and documents generated by the
Division do not become part of a final agency decision subject to
disclosure. All information provided is preliminary and thus not
subject to disclosure under the Kentucky Open Records Act.
Although in its supplemental denial the Cabinet described the
functions of the Division of Site Evaluation, and the types of
records which might be generated in the course of an evaluation,
it did not provide "particular and detailed
information" in response to Ms. Natter's specific request.
"A generic determination that entire categories of records
are excluded from the mandatory disclosure provisions of the Open
Records Act does not satisfy the requirements of the Act."
97-ORD-41, p. 4. In the latter open records decision, the
Attorney General observed:
While neither this office nor [Kentucky's courts] have ever
required an itemized index correlating each document withheld
with aspecific exception, such as that required by federal courts
in Vaughn v Rosen, 484 F.2d 820 (D.C. Cir. 1973) cert.
denied 415 U.S. 977 (1974), . . . we believe that [an agency]
is obligated to provide particularized justification for the
withholding of documents, or groups of documents, which are
properly excludable.
Id. at 6. Simply stated, a conclusory assertion that the
requested records are exempt is wholly inadequate. We urge the
Cabinet for Economic Development to bear these observations in
mind in evaluating future open records requests.
Pursuant to KRS 61.880(2)(c), we reviewed the disputed records
on June 16, 1997. Although we cannot disclose the content of
those records, we can describe, in general terms, the nature of
the records implicated by Ms. Natter's request and the
application of the cited exceptions to them. The records consist
of two file folders, the first labeled "Morganfield"
and the second labeled "Sturgis-Alcoa State." The
Morganfield file contains voluminous correspondence and memoranda
from and to Bob Fouts, Assistant Director of the Site Evaluation
Division, and various public officials and representatives of
private industries. The file also contains an industrial site
questionnaire, prepared by the Division of Site Evaluation, in
which information relating to acreage, pricing, ownership, zoning
and land use, availability of treated water, natural gas, sewage
disposal, electricity, telephone, transportation, and the land
and environment is compiled. In addition, the file contains
various maps, aerial photographs, press clippings, apparent
public relations releases, and business cards.
The second file, labeled "Sturgis-Alcoa State," is
significantly less voluminous, and contains several maps and
aerial photographs. It, too, contains an industrial site
questionnaire prepared by the Division. In addition, the file
contains a Union County, Kentucky 1983 Plat Book, published by
Mid American Publishing Services, and a business card. The file
does not contain any correspondence or memoranda.
In denying Ms. Natter access to all of these records, the
Cabinet chiefly relies on KRS 61.878(1)(i) and (j). These
exceptions authorize nondisclosure of:
(i) Preliminary drafts, notes,
correspondence with private individuals other than correspondence
which is intended to give notice of final action of a public
agency.
(j) Preliminary recommendations, and
preliminary memoranda in which opinions are expressed or policies
formulated or recommended.
From these exceptions "we must conclude that with respect
to certain records, the General Assembly has determined that the
public's right to know is subservient to . . . the need for
governmental confidentiality." Beckham v Board of
Education of Jefferson County, Ky., 873 S.W.2d 575, 578
(1994). This conclusion must, however, be tempered by the
knowledge that "free and open examination of public records
is in the public interest, and the exceptions provided for by KRS
61.878 . . . shall be strictly construed." KRS 61.871.
Clearly, then, the Open Records Act "exhibits a general bias
favoring disclosure." Kentucky Board of Examiners of
Psychologists v Courier-Journal and Louisville Times Company,
Ky., 826 S.W.2d 324, 327 (1992). It is with these principles in
mind that we proceed with our analysis.
In construing the cited exceptions, the Attorney General has
observed:
KRS 61.878(1)(i) and (j) are intended to protect the integrity
of the agency's decision-making process by encouraging the free
exchange of opinions and ideas. They have thus been interpreted
to authorize nondisclosure of preliminary reports and memoranda
containing the opinions, observations, and recommendations of
personnel within the agency and between agencies. OAG 86-64; OAG
88-24; OAG 88-85; OAG 89-34; OAG 89-39; and OAG 90-97. The
purpose underlying these exemptions is discussed at page 4 of OAG
88-85, where this office opined:
[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, the 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. At
page 659, the court reasoned:
It is the opinion of this court that subsection (g) and (h)
[now codified as subsection (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.
See also, OAG 86-24 (holding that monthly and annual reports
submitted to central state government by one of its agencies in
the field can be withheld under KRS 61.878(1)(i) and (j) as long
as the reports neither indicate final agency action nor involve
the incorporation of a preliminary report into a final report of
the agency); OAG 89-34 (holding that a draft report submitted by
the U. S. EPA to Kentucky's Divison of Air Quality is a
preliminary document, and does not lose that character by having
been submitted for review and written comment of the state
agency); OAG 90-97 (holding that a public official's letter to
the Parole Board, containing his opinion as to whether the Board
should grant parole, is exempt from inspection unless
incorporated into or made a part of the Board's final decision on
the matter). [Footnote omitted.]
In contrast, predecisional documents which are incorporated by
the agency into its final action forfeit their preliminary status
and are thereafter subject to inspection. Thus, in OAG 89-69 this
Office held that a legal memorandum, which was originally
preliminary in character, became a public record when it was
incorporated into a note of agency action. There, we observed:
The [notice of agency action] not only refers to the
memorandum, but clearly implies that its recommendations are
being adopted by the Cabinet for the action taken. The letter
states that the memorandum had been requested, that it was now
"in hand," what was the recommendation, and that
"therefore" the Cabinet would expect Ashland to comply
with the memorandum's recommendations.
OAG 89-69, p. 3.
94-ORD-118, pp. 2 - 4.
Like Internal Affairs, the Division of Site Evaluation
"has no independent authority to issue a binding
decision." City of Louisville at 659. It
"investigate[s] geographic sites for possible economic
development [,]. . . . [and] generate[s] . . . memoranda in which
opinions as to the desirability of the site for industrial
development are expressed." These memoranda "may be
utilized . . . to make the decision of whether to pursue or not
pursue further action." However, "no decisionmaker . .
. relies strictly on this Division's evaluations." For this
reason, we concur with the Cabinet in its view that all
correspondence, memoranda, surveys, and reports in which opinions
are expressed and policies formulated or recommended may properly
be withheld pursuant to KRS 61.878(1)(j) unless they were
subsequently incorporated into the final action taken on the
project. If, for example, Union County based its decision to
proceed with the Morganfield industrial expansion project (or not
to proceed with the project), even in part, on reports prepared
and recommendations made by the Division of Site Evaluations, and
those reports and recommendations were incorporated into records
reflecting the county's final action, they "forfeit[ed]
their preliminary status and are . . . subject to
inspection." 94-ORD-118, p. 4. The remaining correspondence,
memoranda, and reports retained their preliminary status and may
be withheld.
We do not believe that KRS 61.878(1)(i) and (j) can be read so
broadly as to include maps, aerial photographs, plat books, press
clippings, PR releases, and business cards. These records cannot
be characterized as preliminary drafts or notes, pursuant to KRS
61.878(1)(i), or preliminary recommendations or preliminary
memoranda in which opinions are expressed, pursuant to KRS
61.878(1)(j). The purpose for which these exceptions were
enacted, namely to protect the integrity of the decision-making
process and insure governmental confidentiality, where necessary,
is not served by the nondisclosure of these records. Unless the
records contain handwritten notations or drawings which are of a
preliminary character, they must be released in their entirety.
If they do, the Cabinet is obligated to mask the excepted
notations or drawings, and make the unexcepted portions of those
records available for inspection. KRS 61.878(4).
Having said this, we make one final point. The Cabinet for
Economic Development argues that the entire process of site
evaluation is shielded from public oversight by KRS 61.878(1)(i)
and (j). If we accept this interpretation, the only action which
is subject to public disclosure is the final action taken by the
"counties, persons or entities" which request that it
investigate geographic sites for possible economic development.
In our view, this interpretation of KRS 61.878(1)(i) and (j) is
overinclusive and does violence to the spirit, if not the letter,
of the Open Records Act. While we recognize that the Cabinet
cannot operate in a fish bowl, we believe that its
characterization of all records generated by the Division of Site
Evaluation as preliminary would result in masses of material
being forever shielded from public inspection because the
requesting county, person, or entity never reached a final
decision. "The public has an interest in decisions deferred,
avoided, or simply not taken for whatever reason, equal to its
interest in decisions made, which from their very nature may more
easily come to public attention than those never made." Vaughn
v Rosen, 523 F.2d 1136, 1146 (D. C. Cir. 1975). In other
words, the public has a legitimate interest in the final actions
taken by public agencies, including the decision to take no
action. 94-ORD-27; 94-ORD-76. The Cabinet should be guided by
these principles in reevaluating its obligations under the Open
Records Act.
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.
Sincerely,
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#571
Distributed to:
Liz Natter
Democracy Resource Center
Suite A
253 Regency Circle
Lexington KY 40503
Robin F. Kinney
General Counsel
Cabinet for Economic Development
Capital Plaza Tower
Frankfort KY 40601
Phyllis Bruning
Economic Development Cabinet
Capital Plaza Tower
Frankfort KY 40601