January 23, 1996

In re: Royden K. Cullinan/City of Louisville


This matter is before the Attorney General on appeal from the City of Louisville's response to Mr. Royden K. Cullinan's open records request to inspect certain records of the City.

We note at the outset that Mr. Cullinan's open records request is procedurally deficient in that he failed to forward to this office a copy of his original open records request as required by KRS 61.880(2). Failure to comply with procedural requirements can be a basis for the Attorney General to decline to consider an appeal. 40 KAR 1:030, Section 1.

Although Mr. Cullinan failed to provide this office with a copy of his September 15, 1995 request, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, in the City's September 20, 1995 response, presented a summary to Mr. Cullinan's open records request. Mr. Guagliardo summarized Mr. Cullinan's request as follows:

Requesting: Contract and Contract Data Sheet for McKissack & McKissack, 2. Report produced by McKissack & McKissack, 3. Enterprise Zone Study produced pursuant to PSC 95-3700, and 4. Vendor invoices for John P. Nelson for the months of May, June, July and August.

For the City's response to this request, Mr. Guagliardo stated:

Ms. Hamilton advises me that she is attempting to locate the items in item #1; that there is no final report as described in item #2; that she is attempting to locate the study described in item #3; and that she has the invoices in item #4 available for inspection.

The records described in item #2 and #3, if and when they exist, may be further exempt under KRS 61.878(1)(j) (preliminary), but we will not be able to determine such until we can review them.

Please contact Ms. Hamilton to make arrangements to inspect the records she has located.

On September 25, 1995, Mr. Guagliardo provided Mr. Cullinan with a follow-up letter in which he stated:

Regarding your September 15, 1995, letter to Cheri Hamilton, Clerk of the Board of Aldermen, we have been able to determine that there is a report produced by McKissack & McKissack. However, I am advised that the report contains recommendations and opinions and is therefore exempt as preliminary pursuant to KRS 61.878(1)(j); OAG 85-96.

With regard to an “Enterprize Zone Study” produced pursuant to PSC 95-3700, there is no such study at this time. Again, even when the study is produced, it may be exempt under KRS 61.878(1)(j) as it may contain opinions and recommendations.

In his letter of appeal, Mr. Cullinan asks this office to determine whether the City of Louisville's response in regards to the Report produced by McKissack & McKissack constituted an improper denial of access to public records.

For the reasons which follow, it is the decision of this office that the response of the City was proper and consistent with provisions of the Open Records Act.

KRS 61.880(1) requires that a public agency respond within three days after receipt of an open records request. This the City did. In a letter provided this office by the City, subsequent to Mr. Cullinan's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2., Mr. Guagliardo explained:

With regard to appeal #1319, my September 20, 1995, letter is 100% accurate. Ms. Hamilton advised me that there was no final report as described in #2. September 20th was the third business day after receipt of Mr. Cullinan's letter and that was the best information available at that time.

Obviously, by September 25, 1995, I had learned that there was a report and so notified Mr. Cullinan. If I had not responded to Mr. Cullinan on September 20th, I am confident that he would have appealed my violating the three-day rule. When I replied to him on September 20, I told Mr. Cullinan what I knew at the time. A few days later I knew more and so informed him. Mr. Cullinan's purported complaint suggests a requirement of moment-by-moment omniscience which I have never claimed and which, I suggest, is not found in either the letter or the spirit of the Open Records Law.

With regards to the merits of the appeal, I am unable to find any evidence that the Attorney General has departed from the views expressed in OAG 85-96 concerning KRS 61.878(1)(j) -- and the need to protect the integrity of an agency's internal decision-making process by encouraging the free exchange of opinions and ideas. OAG 92-125.

I do not know what the August 18, 1995, Courier-Journal article purports to say about this report, but I am advised that no action has been taken based on the report. Even if the report is “final” with regards to the consultant, it is still “preliminary” with regard to the City. The recommendations and opinions are being reviewed and, at some point in the future, a policy or course of action may result. At this point, no such action has taken place and even Mr. Cullinan does not suggest otherwise.

Mr. Guagliardo further stated in his letter to this office that no action had been taken on the McKissack & McKissack Report and that even if the report is “final” with regards to the consultant, it is still “preliminary” with regards to the City. He explained that recommendations and opinions in the report were being reviewed and, at some point in the future, a policy or course of action may result, but at this point, no such action has taken place.

KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act, "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" Mr. Guagliardo, in his responses, states that the Report contains opinions, makes recommendations and is otherwise being reviewed in a preliminary process by the City and, ”at some point in the future, a policy or course of action may result.” Thus, even though the Report is final and being reviewed by the City, no final agency action has been taken by the City in regards to the Report or related matters. Under this circumstance, the Report is a preliminary, predecisional document which may be withheld from disclosure pursuant to KRS 61.878(1)(j).

If, however, 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. The court reasoned:

It is the opinion of this court that subsections (g) and (h) [until recently codified as subsections (h) and (i) and now codified as subsections (i) and (j)] . . . 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.

City of Louisville, supra at 659. In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection.

Until such time that the Report is made part of or incorporated into final agency action, it remains a predecisional document which may be withheld from inspection under KRS 61.878(1)(j). OAG 85-96. Accordingly, it is the decision of this office that the City's response was proper and consistent with the Open Records Act.

A party aggrieved by this decision may appeal it 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 proceeding.







Distributed to:

Royden K. Cullinan

1406 Browns Lane

Louisville, Kentucky 40207

Paul V. Guagliardo

Senior Attorney

City of Louisville

Department of Law

Room 200, City Hall

Louisville, Kentucky 40202-2771