NOT TO BE PUBLISHED
January 29, 1993
IN RE: Brian Cullinan/City of Louisville
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the City of Louisville's partial denial of Mr. Brian Cullinan's June 3, 1992, request to inspect certain documents in the City's custody. Mr. Cullinan requested access to records generally described as "the contract between the City and Carolyn Gatz, as well as all invoices submitted under this contract." The City permitted Mr. Cullinan to inspect these documents, but redacted from the invoices Ms. Gatz's personal credit card number and records of personal telephone calls made from her home phone for which she did not seek reimbursement. In support of its decision to redact this information, the City, through its Assistant Director of Law, Mr. Paul V. Guagliardo, cited KRS 61.878(1)(a). Those records are not in dispute. The City also elected to redact a handwritten note on one of the invoices, relying on KRS 61.878(1)(g) and (h), now codified and hereinafter referred to as KRS 61.878(1)(h) and (i). It is the redaction of this note that Mr. Cullinan challenges.
In his letter of appeal to this Office, Mr. Cullinan argues that KRS 61.878(1)(h) is inapplicable. That provision exempts from public inspection, "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." He maintains that the redacted note is not correspondence with a private individual, but is instead a bill submitted for payment by a city vendor.
Mr. Cullinan also objects to the City's invocation of KRS 61.878(1)(i), which exempts, "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In his view, "The document in questions [sic] was a completed invoice submitted
for payment and paid by the City of Louisville Finance Department." He urges this Office to strictly construe the cited exemptions, and issue a decision consistent with the views he expresses.
In a follow up letter to the Attorney General, Mr. Tom Lukins, Assistant Director of Law for the City of Louisville, elaborated on the arguments originally advanced by Mr. Guagliardo. To assist this Office in rendering its decision, Mr. Lukins attached a copy of the unredacted note. He observes:
[T]he handwritten note at the corner of the page is neither to nor from Ms. Gatz. Payment documents pass through the hands of several City employees in the course of processing. Mr. Cullinan asks, 'Since when is policy, formulated and discussed on the corner of an invoice?' I don't know, but I suspect that it is not unusual. Nor is it improper. And in this case it is obvious from the substance of the note that that is exactly what occurred.
Mr. Lukins acknowledges that the note can not be characterized as "correspondence with a private individual." He maintains, however, that it is a preliminary note and is exempt from inspection under the same theory announced in OAG 88-85 and OAG 88-67, in which this office upheld the denial of "interdepart- mental memoranda" and "preliminary handwritten worknotes." In response to Mr. Cullinan's argument that KRS 61.878(1)(i) does not apply to the redacted records, Mr. Lukins asserts that the note was a preliminary intradepartmental memorandum expressing an opinion and recommending a policy, and therefore falls squarely within the parameters of KRS 61.878(1)(i). He rejects Mr. Cullinan's argument that because the note appeared on an invoice that was approved and paid by the City, it cannot be preliminary. Citing KRS 61.878(4), he takes the position that the exempt material must be, and has been, separated from the nonexempt material, and the nonexempt material released for Mr. Cullinan's inspection.
We are asked to determine if the City of Louisville properly relied on KRS 61.878(1)(h) and (i) in partially denying Mr. Cullinan's request. For the reasons set forth below, we conclude that the City's actions were consistent with the Open Records Act.
This Office has previously recognized:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (h)]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
OAG 78-626, at p. 2. In OAG 88-85 we considered the underlying purpose of these exemptions. There, we observed:
One of the purposes of KRS 61.878(1)[(h) and (i)] appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently recommendations 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 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.
OAG 88-85, at p. 4.
We believe that this view is consistent with the rule announced by the Kentucky Supreme Court in University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992). In that case, the Court held that documents that were once preliminary in nature lose their exempt status only if they are adopted by the public agency as part of its final action. See
also Kentucky State Board of Medical Licensure v. Courier- Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982). We do not believe that approval and payment of the invoice upon which the handwritten note was scribbled renders that note a part of the City's final action relative to payment of the invoice.
We have examined the unredacted record and conclude that Mr. Lukins properly characterized the redacted portion as a preliminary note or recommendation. In it, one employee proposes a change in policy to another employee. Nothing in the note could be construed to be final action of the City, nor does it appear to have been approved or incorporated into final action of the City. We therefore concur with Mr. Lukins in his view that the redacted record falls squarely within the parameters of KRS 61.878(1)(h) and (i). The City properly redacted that portion of the invoice containing a handwritten note in which a new policy was proposed.
Mr. Cullinan may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Tom Lukins
Assistant Director of Law
City of Louisville Dept. of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Hon. L. Brian Cullinan
220 W. Main Street
Louisville, Kentucky 40202