March 5, 1993









IN RE: Madelynn Coldiron/Transportation Cabinet






This matter comes to the Attorney General on appeal from the actions of the Transportation Cabinet relative to Ms. Madelynn Coldiron's January 7, 1993, request to inspect and copy the Combined Pavement Condition Report prepared by the Cabinet in 1991 for the 1992 paving season. Ms. Coldiron is a staff writer for The State Journal, and her request was made under the Kentucky Open Records Act.


On behalf of the Transportation Cabinet, Mr. Joseph K. Heady, Principal Assistant to the Custodian of Records, responded to Ms. Coldiron's request on January 8, 1993. He advised her that "the appropriate office is researching their files and anything not protected by law will be made available to you." In a follow-up letter dated January 13, 1993, Mr. Heady altered his position, explaining:


Under KRS 61.878 of the Open Records Law, OAG 86-32 states, 'A public agency's denial of a request to inspect documents is proper where the documents consist of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda including intra-office memoranda, and all other documents not representing final action of the agency . . .' Therefore, your request is denied.


Upon final action of the agency for this report, you may again request the information which you are seeking.











In her letter of appeal to this Office, Ms. Coldiron takes the position that the report "simply provides a guideline for the roadwork for the upcoming paving season." As such, she argues, it is a "final document." Continuing, Ms. Coldiron observes:


My research indicates that once the report is prepared, it is not amended or changed in any way--despite the cabinet's claim that 'Upon final action of the agency for this report you may again request the information you are seeking.'


The report, she notes, lists each road in Kentucky, along with a description of its length, location, and an evaluation of its condition. In addition, it contains recommendations for improving each road.


On January 27, 1993, this Office requested additional information from the Cabinet to substantiate its position pursuant to KRS 61.880(2). Specifically, we asked the Cabinet to explain how a report prepared in 1991 for the 1992 paving season could be characterized as preliminary. For example, were the findings in the report rejected and a separate report adopted? Was final action never taken on the report, and if not, what action must still be taken to finalize the report? In addition, we asked that the Cabinet provide us with a copy of the Combined Pavement Condition Report to facilitate our review.


On February 1, 1993, Mr. Heady responded to our request. He explained that the Cabinet uses the report as one of many factors in the development of the Resurfacing Program. Elaborating on this statement, he observed:


The report is not . . . a recommendation in itself. The report results from requests by the Cabinet's Chief District Engineers and other professional staff and requests only selected highways within the State Highway System eligible for the Resurfacing Program. A separate list of highways is adopted independent of the Combined Pavement Report.


* * *


No final action is taken with regard to the report itself. Neither is the report












incorporated or referred to in the final document. Elements of the report are adopted as deemed appropriate.


Since the Combined Pavement Condition Report is "one of several technical and administrative considerations that go toward making up the final Annual Resurfacing Program," he argues that release of the report "could mislead the public regarding their use." Mr. Heady did not provide this Office with a copy of the Report, but instead submitted a copy of the Cabinet's internal policies and procedures governing pavement management.


Section 40 - 15.0200 of that document states that the Pavement Management Branch "shall be primarily responsible for the identification, evaluation and ranking of pavements for improvements . . . ." (Emphasis in original.) The Cabinet's policies and procedures further provide:


The Pavement Management Branch will evaluate pavements recommended by the districts and also pavements selected by the Division of Maintenance and Pavement Management Branch staff. Evaluations will consist of visual condition survey, rideability, rutting and skid resistance and points (demerits) will be assigned to each rating element cited on the Pavement Condition Evaluation form, TC 71-103, (Exhibit 40-15-2). The total points scored will be used to rank pavements in each district. After review of evaluation results, the districts will enter their priority ranking of pavements, recommended treatment, and cost estimate, and then return the forms to the Pavement Management Branch.


Section 40 - 15.0322. Although the Combined Pavement Condition Report is not directly referenced in the document, and no explanation was offered by Mr. Heady, Section 40 - 15.0300 states that a report summarizing results of evaluations must be prepared each year by the Pavement Management Branch for submission to, among others, the State Highway Engineer.


The document provided to this Office by Mr. Heady does not address review procedures within the Cabinet, but it is our understanding that the Combined Pavement Condition Report is then submitted to the Director of the Division of Maintenance and the State Highway Engineer who use the Report, among other












factors, to make recommendations on the roads to be resurfaced or repaired. Those recommended projects are put out for bid. The ultimate decision, however, rests with the Cabinet Secretary who authorizes final action by signing off on the bids.


In rebuttal, Ms. Coldiron notes that the Cabinet concedes that the Report is not a recommendation and that a separate list is adopted independent of the Report. This, she maintains, bolsters her argument that the Report is a final document. Nor, she asserts, does the fact that the Report is only one of several factors considered by the Cabinet have any bearing on whether it is preliminary or final. "The public has a right to know what information is used in the decision-making process and whether one type of influence is weighted more heavily than others."


We are asked to determine whether the Transportation Cabinet properly denied Ms. Coldiron's request to inspect and copy the Combined Pavement Condition Report prepared in 1991 for the 1992 paving season. For the reasons set forth below, we conclude that the Cabinet's response was procedurally deficient in that Mr. Heady did not cite an exception to the Open Records Act authorizing nondisclosure of the document, as required by KRS 61.880(1). We also conclude that the Cabinet erred in failing to release any "element" of the report that was incorporated into the Cabinet's Annual Resurfacing Program, i.e., any of the recommendations contained in the Report which were implemented by the Cabinet in that program. Those portions of the Report lost their preliminary characterization to the extent that they were adopted by the Cabinet. However, it is the opinion of this Office that, with the exceptions noted, the Combined Pavement Condition Report is exempt from public inspection pursuant to KRS 61.878(1)(h) and (i).


KRS 61.878(1)(h) and (i) authorize the nondisclosure of:


(h) Preliminary drafts, notes, correspon- dence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;


(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]













These exemptions are intended to protect the integrity of the agency's internal 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. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying these exemptions is discussed at p. 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 p. 659, the court reasoned:


It is the opinion of this court that subsections (g) and (h) [now codified as subsections (h) and (i)] . . . 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 86-64 (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)(h) and (i) 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 Division 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.)1


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 notice 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,



1In OAG 90-97, we observed that the fact that the recommendations are final as to the person making them is irrelevant. Most recommendations are final in the sense that the person making them does not intend to make subsequent recommendations. "The word 'preliminary' as used in KRS 61.878(1)[(i)] obviously refers to recommendations made by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation is the first, second or last recommendation if the state agency has not yet taken final action." OAG 90-97, at p. 4.












and that 'therefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.


OAG 89-69, at p. 3.


Mr. Heady asserts that the Combined Pavement Condition Report is one of several recommendations submitted to the Division of Maintenance and the State Highway Engineer relative to the Cabinet's Annual Resurfacing Program. This assertion is substantiated by the document containing internal pavement management procedures which Mr. Heady provided to this Office, and the comments of Mr. Robert Crace, Acting Director of the Division of Maintenance. The Pavement Management Branch which prepares the Report, like the Internal Affairs Department of the City of Louisville Police Department in City of Louisville, supra, has no independent authority to designate which roads will be resurfaced or repaired and thereby bind the Cabinet. Its report is submitted for review to the Division of Maintenance and the State Highway Engineer, along with other reports and recommendations. It is the Secretary of the Cabinet, however, who makes the ultimate decision on what projects will be undertaken.


Mr. Heady acknowledges in his February 1 letter to this Office that "elements of the report are adopted as deemed appropriate." Any portions of the 1991 Combined Pavement Condition Report which were adopted in the 1992 Annual Resurfacing Program should be made available for inspection and copying by Ms. Coldiron, notwithstanding the fact that other recommendations were considered and adopted as well. In our view, those "elements" of the Report forfeited their preliminary characterization upon adoption.


Ms. Coldiron and the Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
























Distributed to:


Mr. Joseph K. Heady

Principal Assistant to the

Custodian of Records

Department of Administrative Services

Transportation Cabinet

Frankfort, Kentucky 40622



Ms. Madelynn Coldiron

Staff Writer

The State Journal

321 West Main

Frankfort, Kentucky 40601