December 30, 1996

In re: Anthony R. Trusty/City of Louisville

Open Records Decision

This matter comes to the Attorney General on appeal from the City of Louisville's denial of Mr. Anthony R. Trusty's open records request to inspect a copy of correspondence between the city and the Securities and Exchange Commission with any excepted material redacted.

Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, denied inspection of this document on the basis that it was exempt under KRS 61.878(1)(i)(j) and (l) (preliminary opinions, recommendations, attorney-client privilege, attorney work product).

In a written reply to this denial, Mr. Trusty requested that the city redact from the document the material it claimed was exempt and make the record available to him.

In his letter of appeal, Mr. Trusty states he received no response to this reply letter. He claims that the city wrongfully denied his request for a redacted copy of the requested record.

On November 7, 1996, we sent a “Notification of Receipt of Open Records Appeal” to the city and enclosed a copy of Mr. Trusty's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030 Section 2, Mr. Guagliardo provided this office with a response to the issues raised in this appeal. In that response, he states:

Correspondence to the Securities and Exchange Commission concerning the basis for possible investigation does not reflect final action by the City. Correspondence reflecting the opinions or concerns of the City does not lose its exemption because communicated to another regulatory agency. Correspondence reflecting the opinions, concerns and recommendations of the City's legal counsel does not lose its exemption because it was communicated to a federal regulatory agency. Please see OAG 87-28; OAG 91-108.

In addition, Mr. Guagliardo, citing 96-ORD-229, argues that correspondence which is exempt under subsections 1(i), (j) or (l), in its entirety, does not require partial redaction.

To facilitate this office's review, the city furnished us with a copy of the record in question. That document was not disclosed to other parties, and has since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030 Section 3.

We are asked to determine whether the city's withholding of the entire document at issue in this appeal was consistent with the Open Records Act. For the reasons which follow, we conclude that the city properly withheld disclosure of the requested record.

We have examined the record which gives rise to this appeal. Although we cannot disclose its contents, it can be characterized generally as correspondence from an attorney, retained by the city to give legal counsel to the mayor, to the Securities and Exchange Commission in which the attorney engages in preliminary discussions, expresses opinions, and describes concerns relating to the basis for a possible investigation and enforcement action. Thus, the letter, in its entirety, falls squarely within the parameters of KRS 61.878(1)(j) as a preliminary document in which opinions are expressed. We therefore conclude that the city properly relied on the cited exemption in denying Mr. Trusty's request to provide a redacted copy of the letter. 96-ORD-66; 96-ORD-229. Because we find KRS 61.878(1)(j) authorizes the nondisclosure of the disputed record, we do not address the applicability of KRS 61.878(i) or (l) to that record.

We further conclude that the exemption was not waived by the fact that it involved correspondence with an agency of the federal government. KRS 61.878(5) provides:

The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate governmental function.

Thus, the fact that the letter was to the Securities and Exchange Commission does not nullify the exemption. KRS 61.878(5) authorizes the exchange of otherwise exempt records between public agencies when the exchange is serving a legitimate governmental function. OAG 91-108. Accordingly, the correspondence between the city and the federal agency concerning a possible investigation or enforcement action need not be made available for inspection.

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Anthony R. Trusty

2219 Stephan Lane

Louisville KY 40214

Paul V. Guagliardo

Senior Attorney

Department of Law

City of Louisville

Room 200, City Hall

Louisville KY 40202-2771