July 6, 1993





IN RE: John Cleveland/Kentucky Heritage Council






This matter comes to the Attorney General on appeal from the Kentucky Heritage Council's response to Mr. John Cleveland's January 14, 1993, request to inspect a three page memorandum sent to Mr. David Morgan, the Heritage Council's Executive Director, by Thomas N. Sanders, Site Protection Program Manager, on October 21, 1992. In that memorandum, Mr. Sanders expressed his views on the eligibility of the Elk Creek Rock Shelter for listing on the National Register of Historic Places. Mr. Morgan denied Mr. Cleveland's request in a letter dated January 21, 1993, explaining that the Heritage Council "believes [the memorandum] is exempt under KRS 61.878(1)(i) as it constitutes, 'preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.'"


In a followup letter to this Office dated May 13, 1993, Mr. Morgan elaborated on the position he had earlier taken. He explained:


Our Office determined that the Elk Creek Rock Shelter was not eligible for listing on the National Register of Historic Places. I stated this in a letter to Ms. Sara Sanders, Department for Surface Mining Reclamation and Enforcement (DSMRE), on October 19, 1992. This determination was based on a review of the consulting archaeologists' report, on-site inspections, and discussions

with the consulting archaeologists as well as DSMRE staff archaeologists.


The memo in question from Tom Sanders to me expresses Mr. Sanders' opinion on the eligibility of the Shelter. It is an inter-

office communication in which his opinion is expressed and his recommendation are made. It is 'preliminary' in nature in that it was information on which an official decision would be based. In fact, it was written after the actual official decision was made. Nevertheless, it is a memo between staff, preliminary in nature, and we believe it is exempt under the open records statute.


Mr. Morgan provided this Office with copies of various documents, including Ms. Sanders' memorandum, to facilitate our review.


The single issue presented in this open records appeal is whether Mr. Morgan properly relied on KRS 61.878(1)(i) in denying Mr. Cleveland's request for a copy of the Sanders memorandum. For the reasons set forth below, we conclude that the Kentucky Heritage Council did not violate the Open Records Law in denying the request.


KRS 61.878(1)(i) authorizes the nondisclosure of:


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


This exemption is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas. It has thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying the exemption 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 actions 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).


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


OAG 89-69, at p. 3.


The Kentucky Heritage Council took final action on October 19, 1992, when Mr. Morgan notified Ms. Sara Sanders, Supervisor of the Program Development Section of DSMRE, that he concurred with the conclusion reached by Robert B. Hand in his report entitled "A National Register Evaluation of the Elk Creek Rockshelter (15624), Letcher County, Kentucky." Apparently unaware that a decision had been reached, Mr. Sanders submitted his memorandum to Mr. Morgan on October 21, 1992, asking that he take Mr. Sanders' evaluation into

consideration as "you make your recommendation on site eligibility." Clearly, Mr. Sanders hoped to influence Mr. Morgan's decision by advancing his opinions and recommendations. Although the document was not "predecisional" in chronological terms, it was submitted to Mr. Morgan in anticipation of a final decision as a "preliminary memorand[um] in which opinions are expressed or policies formulated or recommended." Thus, it falls squarely within the parameters of KRS 61.878(1)(i), and may properly be withheld from public inspection.


It should be noted that the federal judiciary has, in interpreting the federal analogue to KRS 61.878(1)(i) which is found at 5 U.S.C.552(b)(5) of the Freedom of Information Act, clearly distinguished between "predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and post-decisional memoranda setting forth the reasons for an agency decision already made, which are not." Renegotiation Board v. Grumman Aircraft Engineering Corporation, 421 U.S. 168, 44 L.Ed.2d 57, 95 S.Ct. 1491 (1975). In order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies are formulated. Deliberative or advisory material which is intended to explain a decision or policy already adopted is not within the purview of 5 U.S.C.552(b)(5).


We believe that this line of authority supports the position we take. As we have noted, Mr. Sanders' memorandum was prepared in order to assist Mr. Morgan in arriving at his decision, and not in order to explain a decision already adopted. The underlying purpose of both the state and federal exception, to permit agency decision-makers to receive the benefit of frank and uninhibited discussion of policy matters by agency staff by protecting their advice and opinions from public scrutiny, is best served by the nonrelease of the requested record. We therefore find that the Kentucky Heritage Council properly denied Mr. Cleveland's open records request.


Mr. Cleveland 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. David L. Morgan, Director

Kentucky Heritage Council and

State Historic Preservation Officer

300 Washington Street

Frankfort, KY 40601


Mr. John Cleveland

Box 335

Blackey, KY 41804