January 17, 1996

In re: R. Scott Plain/Cabinet for Human Resources


This matter comes before the Attorney General on appeal from the denial by the Cabinet for Human Resources (hereafter “Cabinet”) of an open records request by Mr. R. Scott Plain to inspect certain records in the Cabinet's custody.

Specifically, Mr. Plain requested a copy of a letter and a Facility Summary pertaining to each of two nursing homes from Ms. Mary Curlin, Regional Program Manager, of the Cabinet's Hopkinsville office to the Cabinet's central office of the Division of Licensing and Regulation, Frankfort, Kentucky.

In response to Mr. Plain's request, Mr. Mark Brengelman, on behalf of the Cabinet, stated:

This correspondence is in response to your letter of July 17, 1995, where I explained generally the licensure process as it relates to negative action. Basically, the local regional surveyor(s) report their facts to the Regional Program Manager, who makes an initial recommendation to the central office, Division of Licensing and Regulation, i.e., Timothy L. Veno, Director. I have confirmed today that no Denial of Licensure and Preliminary Order to Close has been issued from central office.

In regards to your request for the Facility Summary from Mary Curlin, Regional Program Manager, Region A, the Cabinet is treating your request as an Open Records Request pursuant to KRS 61.870 et. seq. These are documents which constitute preliminary memoranda or recommendations in which opinions are expressed or policies formulated or recommended and will be denied to you pursuant to KRS 61.878(1)(j). If you disagree with this response you may seek review by the Office of the Attorney General pursuant to KRS 61.880.

Finally, if you wish to submit any documentation for consideration before any final agency action is taken, please forward same to Timothy L. Veno, Director, Division of Licensing and Regulation, Cabinet for Human Resources, 275 East Main Street, Frankfort, KY 40621.

In his letter of appeal to this office, Mr. Plain asks this office to review whether the Cabinet's denial of the requested records under authority of KRS 61.878(1)(j) was consistent with the Open Records Act. For the reasons which follow, we conclude that the Cabinet properly denied Mr. Plain's open records request.

KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act:

(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

This exemption is intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas. It has thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency and between agencies. OAG 90-97. The purpose underlying this exemption is discussed at page 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 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.

If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

In his response, Mr. Brengelman indicated that no final agency action had been taken in regards to the two nursing homes in question. Under these facts, Ms. Curlin's letter and Facility Summary of each nursing home, which were forwarded to the central office for final action, would be ”preliminary memoranda or recommendations in which opinions are expressed or policies formulated or recommended,” which are exempt from disclosure under KRS 61.878(1)(j). Accordingly, it is the decision of this office that the Cabinet's denial of Mr. Plain's open records request was 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:

R. Scott Plain

Wilson, Wilson & Plain

414 Masonic Bldg.

P.O. Box 852

Owensboro, Kentucky 42302

Mark Brengelman

Assistant Counsel

Cabinet for Human Resources

275 East Main Street-4 West

Frankfort, Kentucky 40621-0001