March 18, 1996

In re: R. Keith Cullinan/City of Louisville


This matter comes to the Attorney General on appeal from the City of Louisville's partial denial of Mr. R. Keith Cullinan's February 6, 1996 open records request to inspect “the letter dated April 19, 1994, from Christina Heavrin to Donald L. Cox, Frank Burke, Sr. and Bill Hollander.”

By letter dated February 9, 1996, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, responded to Mr. Cullinan's request, stating:

This is in response to your letter of February 6, 1996, concerning previous correspondence between you and me.

Your January 30, 1996, letter to Robert Schwoeppe conveniently failed to advise Mr. Schwoeppe that when you had previously received a copy of the partially redacted April 19, 1994, letter from the Law Department you were provided, in writing, with a brief explanation of how the statutory exemption applies to the record in question. Instead, you simply demanded from Mr. Schwoeppe an “unredacted” copy of the record.

My February 1st letter to you, cc to Mr. Schwoeppe and Ms. Parks, simply reminded you and them that your request seemed to be a repeat request and that our earlier response probably contained the appropriate explanation required by law. You have not suggested otherwise. That explanation still applies, as it did last fall when you were provided the document and an explanation. KRS 61.878(1)(i) and (j).

With his letter of appeal, Mr. Cullinan enclosed a copy of Mr. Guagliardo's response, dated September 27, 1995, regarding the redacted letter. In that response, Mr. Guagliardo stated:

With regard to legal bills, we have located (and are enclosing) a partially redacted letter from the Director of Law to the attorneys representing some of the defendants in Cullinan v. Abramson. The redaction is based on KRS 61.878(1)(i) and (j) (preliminary communications containing recommendations or opinions.)

In his letter of appeal, Mr. Cullinan, in relevant part, states:

The City once again cries “preliminary” when it has something to hide. In addition to noting that the letter sought is nearly two years old, please be advised that the legal representation referred to in its caption has been vigorously underway (at taxpayer expense, of course) since that date by the no-bid contract attorneys addressed.

It is well settled that preliminary materials lose any exempt status they may have had when they are adopted by the agency as part of its action. University of Louisville v. Courier Journal, 830 SW(2d) 373 (Ky. 1992) [This case construed KRS 61.878(1) subsections (g) and (h), which are now subsections (i) and (j) upon which the City relies.]

The City's implementation of and payment for the representation of the parties noted in the letter at issue have caused the redacted portion to have lost any exempt status that once may have been applicable under the subsections cited.

Subsequent to receipt of Mr. Cullinan's letter of appeal and as authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, Mr. Guagliardo provided this office with a response to the issues raised in the appeal. In this response, Mr. Guagliardo explained that the redacted portion of the letter was a non-final, preliminary communication containing recommendations and opinions between the City's Director of Law with lawyers, hired to represent city employees in a lawsuit, discussing how the case, which is still ongoing, would be handled.

Pursuant to KRS 61.880(2)(c), this office, in order to facilitate our review of the issues raised in this appeal, requested a copy of the record involved. We have examined the portion of the letter which was redacted and, although we cannot disclose its contents, it can be summarized generally as a communication from the Director of Law to lawyers, retained by the City, discussing preliminary aspects of handling the case. The redacted portion, as characterized by Mr. Guagliardo, contains recommendations and opinions and does not represent final action by the City. For the reasons which follow, it is the decision of this office that the City's action in redacting this portion of the requested letter was consistent with provisions of the Open Records Act.

KRS 61.878(1)(i) and (j), permit an agency to withhold:

(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;

(j) 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 by encouraging the free exchange of opinions and recommendations. They have been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. 94-ORD-92. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

The existence of a lawsuit does not nullify the exceptions to public inspection codified at KRS 61.878(1)(a) through (l). Hence, documents generated in the course of litigation, including letters and memoranda containing the opinions, observations, advice, and recommendations of agency counsel and personnel are exempt from public inspection pursuant to KRS 61.878(1)(i) and (j) unless they are adopted as final agency action. Only those records which are so adopted must be made available for inspection inasmuch as they thereby lose their preliminary status. 92-ORD-1024; 93-ORD-58.

Applying these principles to the facts presented in this appeal, we conclude that the City properly redacted that portion of the letter containing opinions and recommendations to the City's retained attorneys from the City's Director of Law. That portion of the letter was and is preliminary in nature and could be withheld under authority of KRS 61.878(1)(i) and (j).

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. Keith Cullinan

Attorney at Law

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