NOT TO BE PUBLISHED
April 4, 1995
In re: Larry D. Catlett/Department of Transportation
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department of Transportation's denial of Mr. Larry D. Catlett's January 3, 1995, request, on behalf of the Greater Harrodsburg/Mercer County Planning and Zoning Commission, to inspect the routing slips used by the District 7 Office and Frankfort Office of the Department of Transportation to make comments on the proposed encroachment permit application.
On January 9, 1995, Mr. Jon D. Clark, Commissioner, Department of Administrative Services and Custodian of Records, Department of Transportation, responded to Mr. Catlett's request stating the Department would be unable to provide him with the routing slips used to make comments on the proposed encroachment permit application. In support of the denial, Mr. Clark stated, "Based on KRS 61.878(1)(j) of the Open Records Law, 'Preliminary recommendations, and preliminary memoranda in which opinions expressed or policies formulated or recommended,' are exempt from public inspection."
We are asked to determine if the Department of Transportation properly responded to Mr. Catlett's request for the routing slips. For the reasons set forth below, we conclude that the Department's response was consistent with the Open Records Law.
This office has consistently recognized that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations may be withheld from public inspection pursuant to KRS 61.878(1)(j), unless such documents are incorporated into, or give notice of, final agency action. See OAG 92-112 and opinions cited therein.
It is the decision of this office that, to the extent the routing slips contained comments and observations of a preliminary nature and were not incorporated into the final permit document, they are records exempt from disclosure. Accordingly, the Department of Transportation properly denied Mr. Catlett's request for the routing slips under authority of KRS 61.878(1)(j).
Mr. Catlett may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Mr. Jon D. Clark, Commissioner
Department of Administrative Services
and Custodian of Records
Frankfort, KY 40622
Hon. Larry D. Catlett
304 North Main Street
Harrodsburg, KY 40330