March 15, 1994







IN RE: James Malone/Justice Cabinet






This appeal originated in a request for public records submitted by Mr. James Malone, a staff writer for The Courier-Journal's Western Kentucky Bureau, to the Justice Cabinet. The disputed record is identified as "[a]n unedited copy of the Cabinet's initial investigation into the Western Area Narcotics Team (WANT)." An edited copy of the report was issued by the Cabinet at the close of the investigation. Mr. Malone sought access to the 14 pages of the report which were deleted. In addition, Mr. Malone asked that the Cabinet advise him who was interviewed as a result of the investigation, the results of those interviews and the cost of the probe.


On November 10, 1993, Mr. Paul F. Isaacs, General Counsel for the Justice Cabinet, responded to Mr. Malone's request, advising him that the requested records are "memoranda of a preliminary nature," and are therefore exempt pursuant to KRS 61.878(1)(j). Relying on KRS 61.872(3)(b), he further

advised Mr. Malone that his request for "all" records was "overbroad," and need not be honored. This appeal followed.


Mr. Malone maintains that the Cabinet's reliance on KRS 61.878(1)(h) is misplaced insofar as the investigation has been completed. In his view, he is entitled to all of the records which were "used in compiling it." He explains:


Since this was a potential criminal case, and decision [sic] was made not to prosecute, I asked to inspect records which the Cabinet compiled in its investigation that would show: an unedited report; who was interviewed; results of the interviews and the cost of the probe.


Mr. Malone asks that we issue a decision consistent with these views.


Unable to resolve this dispute on the facts presented, this Office requested additional information from the Justice Cabinet on February 16, 1994. Specifically, we asked that the Cabinet explain why it characterized the report as "memoranda of a preliminary nature." On behalf of the Cabinet, Mr. Christopher Johnson, Official Custodian of Records, responded to our request. In his response, Mr. Johnson observed:


This office conducted an intensive on-site monitoring of a sub-grantee, the Western Area Narcotics Team (WANT), during April and May of 1993. Monitoring was performed by a four person team, three of whom work in the Office of the Secretary and one who works in the Department of Criminal Justice Training. Each of the four team members forwarded a preliminary report of their own monitoring to Paul Isaacs, our General Counsel. Mr. Isaacs then compiled the four individual drafts into one consolidated

draft report which was given back to the four monitors for review and final editing.


It is the consolidated draft that Mr. Malone had requested, and that I denied pursuant to KRS 61.878(1)(h) and (i). The reference to KRS 61.878(1)(j) was in error. Despite his assertion to the contrary, the consolidated draft was not released. The final version, dated September 1, 1993, was the draft adopted by Secretary Wellman as the final report and has been released to many people, including Mr. Malone.


To facilitate our review, Mr. Johnson furnished this Office with a copy of the disputed record, entitled "Preliminary WANT Grant Program Monitoring Report."


We are asked to determine if the Justice Cabinet violated the Open Records Act by denying Mr. Malone access to the draft report prepared by Mr. Isaacs. For the reasons set forth below, we conclude that the Cabinet's denial of Mr. Malone's request was consistent with the Open Records Act.


KRS 61.878(1)(h) and (i) exempt from the mandatory disclosure provisions of the Open Records Act:



(h) Preliminary drafts, notes, correspondence 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; and 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 functions 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 subsection (g) and (h) [now codified as subsection (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 of 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.)


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.


We have examined both the preliminary "draft" report prepared by Mr. Isaacs, and the final report adopted by Secretary Wellman and issued on September 1, 1993. The latter report reflects substantial revisions and omissions, most of them editorial. It also contains additional comments and recommendations. The fourteen pages which were omitted from the final report can be described, in general, as summaries of interviews with unidentified employees in which the employees are asked to express their opinions on various issues relating to WANT. This portion of the preliminary report is not referenced in the final report. Nor, obviously, was it adopted in that report. Accordingly, it, along with the rest of the draft report must be characterized as a preliminary document. The draft is most closely analogous to the document at issue in OAG 89-34, previously referenced. There we held that a preliminary draft falls squarely within the parameters of KRS 61.878(1)(h), now codified as KRS 61.878(1)(i). We believe this opinion is dispositive of the present appeal.


Mr. Malone may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.














Distributed to:


Hon. Paul Isaacs

Justice Cabinet

Bush Building, Second Floor

403 Wapping Street

Frankfort, KY 40601


Hon. Christopher Johnson

Official Custodian of Records

Justice Cabinet

Bush Building, Second Floor

403 Wapping Street

Frankfort, KY 40601


Mr. James Malone

The Courier Journal

Western Kentucky Bureau

P. O. Box 1110

Paducah, KY 42002