NOT TO BE PUBLISHED
March 10, 1993
IN RE: Don Meade/City of Louisville
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the City of Louisville relative to Mr. Don Meade's October 1, 1992, request to inspect certain documents in the City's custody. The disputed records are identified generally as records "related to the exercise of eminent domain powers, the analysis done on economic incentives to maintain Bremner [Inc., a manufacturer of baked goods] in the area and the positions of the respective parties with regard to consideration of these incentives." Specifically, Mr. Meade requested access to:
(1) files relating to correspondence between the parties over the exercise of eminent domain powers;
(2) documentary information involving incentive packages which have been offered to Bremner;
(3) notes of meetings or other documents evidencing communications between government agencies and Bremner regarding the evaluation and assessment of incentive packages;
(4) correspondence or other documentary evidence between agencies regarding the status of efforts to induce Bremner not to leave the area; and
(5) documents relating to Bremner's response and position with regard to these efforts.
Mr. Meade is an attorney representing Mr. Gilbert Hedges, Chief Union Steward at Bremner, and his request was made under the Kentucky Open Records Act.
On behalf of the City of Louisville, Mr. Richard T. Frank, Assistant Director of Law, denied Mr. Meade's request on October 14, 1992. He advised Mr. Meade that the Louisville and Jefferson County Office of Economic Development files he requested "contain preliminary notes, drafts and recommenda- tions, correspondence to private individuals and preliminary estimates and evaluations . . . ." It was his position that the records were exempt under KRS 61.878(1)(e), (h), and (i).
In a followup letter to this Office, Mr. Frank explained that no final incentive package was ever offered or entered into with Bremner. Continuing, he observed:
Correspondence between Bremner and the City, as well as other parties, has taken place and information was exchanged concerning such things as alternative site locations, utility costs and possible incentives which might be available if Bremner was to relocate in Jefferson County. However, no incentive package was ever finalized between the parties nor is there in our possession any formal rejection of an incentive package between the parties.
Mr. Frank maintains that because the correspondence between Bremner and the City is preliminary, "and in no way a final incentive package between the parties," it is exempt from the mandatory inspection requirements of the Open Records Act. To facilitate our review of the City of Louisville's actions, Mr. Frank provided this Office with copies of correspondence concerning Bremner's possible relocation to alternative site.
In his letter of appeal to this Office, Mr. Meade notes that the City "studied, structured and proposed a package of incentives to be offered to Bremner in order to retain . . . jobs." Bremner, however, refused these incentives, and accepted a package of incentives from the state. In his view, the matter has been concluded. He therefore argues that the disputed records are not exempt from inspection by virtue of the fact that Bremner rejected the City's incentive package.
The issue presented in this open records appeal is whether the City of Louisville properly relied on KRS
61.878(1)(e), (h), and (i) in denying Mr. Meade's request. Based on the reasoning set forth in OAG 91-21, we conclude that the City's actions were consistent with the Open Records Act.
In OAG 91-21, a copy of which is attached, this Office was asked to determine whether the City of Owensboro and Daviess County properly denied a request for, among other things, "the final incentive package" offered to Scott Paper Company, and any "final or preliminary communications between [the City and County] and any official of Scott Paper Company." At p. 5 of that opinion, we answered this question in the affirmative, holding that the City and County had properly relied on KRS 61.878(1)(h) and (i), formerly codified as KRS 61.878(1)(g) and (h). It is instructive to quote at length:
It is our understanding that the extent of the action taken in this matter by the City of Owensboro and Daviess County has been to issue a Letter of Intent to Scott Paper Company. The Letter of Intent is not final agency action, because the 'incentive package' is subject to negotiation and change until such time as final agreement is reached among the parties. Therefore, the Letter of Intent is a preliminary document that may be withheld from inspection pursuant to KRS 61.878(1)(g) and (h). At this time, there is no 'final incentive package' for the City of Owensboro and Daviess County because no final agency action has been taken in this matter. Accordingly, the City of Owensboro and Daviess County were justified in withholding this document pursuant to KRS 61.878(1)(g) and (h).
In contrast, we held that the state, through the Cabinet for Economic Development, had taken final action, and its incentive package was subject to disclosure. The Cabinet had "submitted certain documents regarding this incentive package to the Secretary of the Finance and Administration Cabinet and to the Legislature for approval." These documents represented "final agency action by the Cabinet for Economic Development" in that negotiations were concluded and an agreement reached between the parties.
No such agreement was reached by the City and Bremner. As Mr. Frank explained, although information was
exchanged concerning alternative sites, utility costs, and possible incentives, no incentive package was ever finalized. We believe that any correspondence regarding the incentive package between the City and Bremner is preliminary, and properly excluded from disclosure pursuant to KRS 61.878(1)(h) and (i). OAG 91-21, at p. 6. Because we believe these provisions authorize nondisclosure of the disputed records, we will not address the applicability of KRS 61.878(1)(e) to the records.
Mr. Meade may challenge this decision in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Richard T. Frank
Assistant Director of Law
City of Louisville Dept. of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Hon. Don C. Meade
Miller & Meade, P.S.C.
802 Republic Building
429 West Muhammad Ali Blvd.
Louisville, Kentucky 40202