NOT TO BE PUBLISHED
97-ORD-113
July 16, 1997
In re: Chris Dyke/Cabinet for Health Services, Office of
Program Support
Open Records Decision
This matter comes to the Attorney General on appeal from the
denial by the Office of Program Support, Cabinet for Health
Services, of the open records request of Ms. Chris Dyke to
inspect the "reorganizing and/or restructuring plans within
the agency and its subdivisions."
Ms. Marcia R. Morgan, Executive Director, Office of Program
Support, Cabinet for Health Services, denied Ms. Dyke's request,
explaining:
These documents are preliminary memoranda containing
preliminary recommendations in which opinions are expressed or
policies formulated or recommended and are therefore excluded
under KRS 61.878(1)(i).
In her letter of appeal to this office, Ms. Dyke argued:
I believe the documents could not be "preliminary"
or in any way exempted from the Public Records Act, since
employees have received notice dated May 15, 1997, informing them
of a their "involuntary transfer." The letter dated May
15, 1997, states "the action is necessary to move forward
with restructuring of the Division of Licensing and
Regulation."
On June 18, 1997, we sent the Cabinet a "Notification of
Receipt of Open Records Appeal" and enclosed a copy of Ms.
Dyke's letter of appeal. As authorized by KRS 61.880(2) and 40
KAR 1:030, Section 2, Ms. Morgan, on behalf of the Cabinet,
provided this office with a response to the issues raised in the
appeal. In her response, she stated:
A proposed reorganization of the Division is in the discussion
stage and preliminary recommendations are being formulated.
Responding to Ms. Dyke's reference in her letter of appeal to
the involuntary transfer of employees letter, which was not
mentioned in the original open records request, Ms. Morgan
explained that, after checking with the Division of Licensing and
Regulation, the only written documentation relating to
involuntary transfers and restructuring of the Division are the
letters sent to the employees being transferred to regional
offices. She enclosed copies of those letters with the response
submitted to this office.
We are asked to determine whether the denial of the requested
records was consistent with the Open Records Act. For the reasons
which follow, we conclude that denial of the request based upon
the preliminary nature of the documents was consistent in part
and inconsistent in part with the Act.
In support of her denial, Ms. Morgan cited KRS 61.878(1)(i) as
authority for withholding of records which are "preliminary
memoranda containing preliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies formulated
or recommended." It is apparent from the quoted language,
that this is a miscite. The correct cite should be KRS
61.878(1)(j), which relates to preliminary matters as quoted in
her response.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or
recommended.
This office has long recognized that records which are
preliminary in nature, such as working drafts that are subject to
revision, fall squarely within the parameters of KRS
61.878(1)(j). OAG 89-34; 94-ORD-38; and 97-ORD-51. Such On June
18, 1997, we sent the Cabinet a "Notification of Receipt of
Open Records Appeal" and enclosed a copy of Ms. Dyke's
letter of appeal. As authorized by KRS 61.880(2) and 40 KAR
1:030, Section 2, Ms. Morgan, on behalf of the Cabinet, provided
this office with a response to the issues raised in the appeal.
In her response, she stated:
A proposed reorganization of the Division is in the discussion
stage and preliminary recommendations are being formulated.
Responding to Ms. Dyke's reference in her letter of appeal to
the involuntary transfer of employees letter, which was not
mentioned in the original open records request, Ms. Morgan
explained that, after checking with the Division of Licensing and
Regulation, the only written documentation relating to
involuntary transfers and restructuring of the Division are the
letters sent to the employees being transferred to regional
offices. She enclosed copies of those letters with the response
submitted to this office.
We are asked to determine whether the denial of the requested
records was consistent with the Open Records Act. For the reasons
which follow, we conclude that denial of the request based upon
the preliminary nature of the documents was consistent in part
and inconsistent in part with the Act.
In support of her denial, Ms. Morgan cited KRS 61.878(1)(i) as
authority for withholding of records which are "preliminary
memoranda containing preliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies formulated
or recommended." It is apparent from the quoted language,
that this is a miscite. The correct cite should be KRS
61.878(1)(j), which relates to preliminary matters as quoted in
her response.
KRS 61.878(1)(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or
recommended.
This office has long recognized that records which are
preliminary in nature, such as working drafts that are subject to
revision, fall squarely within the parameters of KRS
61.878(1)(j). OAG 89-34; 94-ORD-38; and 97-ORD-51. Such records
forfeit their preliminary characterization only if they are
formally adopted by the agency.
The Cabinet, in its responses, indicated that the
reorganization was still in the discussion stage and not yet
completed by the agency. Accordingly, we conclude that the
Cabinet, under authority of KRS 61.878(1)(j), properly withheld
preliminary records relating to its reorganization and
restructuring plans.
However, the involuntary transfer letters referred to by Ms.
Dyke, copies of which were provided this office by Ms. Morgan,
indicate that one plan has been developed and implemented by the
Division. The letters state in part:
Due to the increasing number of changes in the survey process
and complexity of the surveys the Division of Licensing and
Regulation is required to complete, it has become necessary to
consolidate the area offices and have all field staff under the
direct supervision of a Regional Program Manager. The purpose of
this action is necessary to move forward with restructuring of
the Division of Licensing and Regulation.
This language reveals that the Division has adopted a plan to
consolidate area offices and have all field staff under the
direct supervision of Regional Program Manager. To the extent
that the Division has developed and implemented such a plan, it
would no longer be preliminary in nature. Records related to this
plan referred to in the involuntary transfer letters should be
made available for Ms. Dyke's inspection, unless otherwise exempt
under other provisions of KRS 61.870 to 61.884.
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
#652
Distributed to:
Chris Dyke
Field Representative
Kentucky Association of State Employees
115 East Second Street
Frankfort KY 40601
Marcia R. Morgan
Executive Director
Office of Program Support
Cabinet for Human Resources
275 East Main
Frankfort KY 40601