April 28, 1993






IN RE: Jack Peyton/Simpson County Board of Education






This matter comes to the Attorney General on appeal from the Simpson County Board of Education's denial of Mr. Jack Peyton's February 12, 1993, request to inspect "any information including [the] reason or reasons pertaining to the nonrenewal of Supt. Charles Campbell's contract." On behalf of the Board of Education, Chairman Sid Raby responded to Mr. Peyton's request, advising him:


Kentucky's open records law authorizes a public right to inspect 'public records.' [sic] KRS 61.872. Your request for 'information' does not fall within the definition of 'public records' under KRS 61.870, which defines 'public records' to mean 'all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings or other documentary material regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency.' Accordingly, your request as submitted is denied.


Chairman Raby further advised Mr. Peyton that to the extent that his request for information "includes any public records," that request was also denied. He explained that "there are no specific documents that enumerate the Board's collective reasons for the nonrenewal of the superintendent's contract." Any records which the individual Board members relied on prior to their vote on the issue are exempt, according to Chairman Raby, under KRS 61.878(1)(a).


The sole issue presented in this open records appeal is whether the Simpson County Board of Education, through its Chairman, properly denied Mr. Peyton's request to inspect "information including [the] reason or reasons pertaining to the non-renewal of Supt. Charles Campbell's [c]ontract." For the reasons set forth below, we conclude that Chairman Raby's response was only partially consistent with the Open Records Law.


This Office has repeatedly recognized that the Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Act provides for inspection of reasonably identified records. Mr. Peyton's request may be characterized as a request for specific information, as opposed to a request to inspect reasonably described documents. He asks for "information . . . pertaining to the non-renewal of Supt. Charles Campbell's [c]ontract."


At page 3 of OAG 87-84, the Attorney General observed:


Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.


It is the opinion of this Office that Chairman Raby properly responded to Mr. Peyton's request for information relating to

the non-renewal of Supt. Campbell's contract by advising him that the information requested is not available in an existing document.


We are not persuaded by Chairman Raby's argument that any records which contain information bearing on the issue of the decision not to renew Supt. Campbell's contract are exempt from inspection under KRS 61.878(1)(a). That provision authorizes the nondisclosure of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." We fail to see the relevance of this exception. However, we believe that any records which were used by the Board members in making their decision, but were not incorporated into their final decision, are exempt from inspection under KRS 61.878(1)(h) and (i).


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


Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;


Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;


In 93-ORD-26, a copy of which is attached, we analyzed, in some depth, the propriety of a public agency's decision to withhold predecisional documents. There we held that these exemptions were intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas. The exceptions 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 90-97; 93-ORD-26.


If, however, the predecisional documents are incorporated into final agency action, they are not exempt. We believe that 93-ORD-26 is dispositive of the present appeal as it relates to records which the Board did not incorporate into its final action. If, however, any of these documents were adopted as part of the Board's final action in this matter, they are not exempt from disclosure under KRS 61.878(1)(h) and (i), and must be released to Mr. Peyton forthwith.


Mr. Peyton and the Simpson County Board of Education 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. Sid Raby, Chairman

Simpson County Board of Education

P. O. Box 467

Franklin, KY 42135-0467


Mr. Jack Peyton

1325 Peden Mill Road

P. O. Box 673

Franklin, KY 42134