"Preliminary" pension reports and perennial problems with public access

COG2

In one of the earliest legal challenges to Kentucky's Open Records Law, the City of Louisville objected to disclosure of its internal affairs unit’s investigative files involving allegations of police misconduct. The city’s objections were based on the exceptions to the Open Records Law that permit nondisclosure of  “[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency” and  “[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.”

The court recognized the public’s right of access to the complaints that spawned the investigations, as well as the final action taken on the complaints, but affirmed the city’s denial of access to the underlying investigative files because internal affairs was not authorized to take final action against the police officers. Only if the chief of police, “who alone determines what final action is to be taken” adopted the information in the files “as part of his final action,” the court concluded, did the files lose their “preliminary characterization” and become publicly accessible.

Through the years, this analysis of the frequently invoked "preliminary documents" exceptions has created one of the greatest impediments to the public’s right to know.

The policy supporting these exceptions is a sound one: to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations while the process proceeds. But these exceptions, found at KRS 61.878(1)(i) and (j), are often cited to shield from public inspection all pre-decisional records until final action is taken -- or a decision is made to take no action -- and thereafter unless the records are adopted as part of that final action or decision not to act.

Not all "pre-decisional" records are -- as the exceptions expressly require -- drafts, notes, or correspondence with private individuals or preliminary recommendations or memoranda in which opinions are expressed and policies formulated.

By virtue of a loose construction of the exceptions, and despite the legislative declaration that all exceptions must be “strictly construed,”  the courts have declared -- in the most recent case analyzing the exceptions -- that “piecemeal disclosure along the path of the decision-making process is not mandatory.”  This is true regardless of whether the disputed records consist of drafts, notes, preliminary recommendations, etc. and regardless of the fact that agencies are statutorily obligated to separate excepted from non-excepted materials and make the non-excepted materials available for public inspection even in the midst of the decision-making process. Given the wealth of information these records contain in enabling the public to understand the process – what was considered and how officials hammered out their differences in arriving at final action – this is unfortunate.

It is especially unfortunate when a record that is generated after official action is taken is characterized as “preliminary.”

This occurred on November 13 when the Kentucky Retirement Systems Board of Trustees declined to discuss – much less release – a report “on how much [a] proposed pension reform bill would cost taxpayers and how much it would impact pension plans within the [KRS]” prepared by its consultant, GRS Consulting.

While it does not appear that all trustees agreed on the preliminary nature of the report, and the length of time the report would be withheld, trustee and state budget director John Chilton deemed the report “preliminary” because the previously released 505 page pension reform bill that codifies the publicly announced pension reform plan is not “[t]he final bill . . . It’s part of the legislative process. It’s information that’s preliminary. It’s not a final bill.”

Chilton suggested that the report would only be released “whenever the legislature decides to file” a final bill.

But the consultant’s report does not analyze the “final bill.” The final bill exists only in the abstract. It is disturbing to think that the public might be deprived of all reports, analyses, and other records relating to the pension until a final bill is filed on the pretext that everything that proceeds it is "preliminary."

The consultant’s report which Chilton characterizes as “preliminary” examines the cost and impact of the administration’s pension plan. Although that plan is subject to legislative revision, it is final as to the administration. The report analyzing it is a post-decisional – not a pre-decisional – record that is in no way preliminary as described in KRS 61.878(1)(j).The argument that it is “clearly marked as a draft” is a non-starter. Merely stamping a record “confidential” or “draft” has no legal impact. In several cases, the attorney general has recognized that “placing a notation such as “draft” or “confidential” on a public record does not restrict the public’s right of access to the record unless the notation is supported by an applicable statutory exemption.” Any other view would promote abuse of KRS 61.878(1)(i) through the simple expedient of marking a nonexempt record “confidential” or “draft.”

Kentucky's sunshine laws are premised on the legislative recognition that "the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created."

KRS’s refusal to release a report, prepared at the people’s expense, that alerts the people to the shared cost and impact of the administration’s plan for pension reform is – at best – legally problematic. It is – at worst – an improper attempt to usurp the people’s right to “remain[ ] informed so they may retain control over the instruments they have created.”