Courier-Journal v. Jones

HOWERTON, Judge,

concurring.

I concur with Chief Judge Lester’s opinion. As was pointed out in Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994), “A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.”

Although the Governor’s daily appointment ledger is certainly different from preliminary drafts, notes, correspondence, recommendations, or memoranda, such as might be associated with judicial opinions or decision-making processes, executive policies or orders, or legislative acts, there are analogies which favor including the ledger as an exempted document under KRS 61.878. Factually, the appointment ledger is a “preliminary” draft of what the Governor’s staff schedules, attempts to schedule, or expects to schedule for the Governor’s daily activities. It is not an accurate log of what actually occurred. The ledger is subject to many changes and it is never corrected. Indeed, the Governor may in one way or another meet with, confer with, and talk to many people or groups who never appear on the ledger.

While we are certainly not bound by Attorney General Opinions, I do find OAG 78-626 persuasive. It was written by now Chief Justice Robert Stephens, and it concluded that the Mayor of Louisville’s appointment calendar was exempt from the Open Records Law. The Attorney General determined that the Mayor’s calendar “is nothing more than a work paper, a preliminary draft, notebook or memorandum.” Considering the nature of the Governor’s ledger, I am unable to distinguish the two documents. The Office of the Governor’s inaccurate and incomplete work sheet is presently beyond the “public’s right to know.”

The judgment of the Franklin Circuit Court should be affirmed.