March 22, 1996

In re: Bryan Station Neighborhood Association/Transportation Cabinet


This appeal originated in a request to inspect public records submitted by the Bryan Station Neighborhood Association to the Kentucky Transportation Cabinet. On November 13, 1995, Patricia Rabits, past chairman and current president of the Bryan Station Neighborhood Association Road Improvement Committee, requested a copy of the “`Final Environmental Impact/Section 4(f) statement submitted pursuant to 42 USC 4332 (2) (c) and 49 USC 303', [sic] and any other similar or related reports of the same or similar nature prepared by . . . [eleven named state and federal agencies including the Transportation Cabinet].” On November 17, 1996, Jon D. Clark, Commissioner of the Department of Administrative Services and custodian of records for the Transportation Cabinet, responded to Ms. Rabits's request. Mr. Clark provided her with a copy of the environmental impact statement and related records, but withheld one memorandum. He explained:

Based on KRS 61.878(1)(j) of the Open Records Law, “Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended,” are exempt from public inspection.

It is from this partial denial of Ms. Rabits's request that the Bryan Station Neighborhood Association appeals.

In his letter of appeal, Samuel T. Isaac, current chairman of the Association's Road Improvement Committee, acknowledges that the Association does not know “whether the claim of exemption is justified and within the law,” but argues that “the public's right to know should outweigh some technical and questionable claim of exemption.” In response, the Transportation Cabinet maintains that disclosure of the memorandum at this time “would hamper the Cabinet's ability to allow its employees to communicate their opinions, recommendations and estimates freely.” On behalf of the Cabinet, Richard H. Deters, General Counsel, observed:

The Cabinet produced all of the documents requested with the exception of a single one page memorandum from the Cabinet's Division of Environmental Analysis to the Pre-Construction Branch in District 7 in Lexington. This is a preliminary inter-office memorandum containing preliminary rough estimates on the amount and cost of removal of an area of contaminated soil from an underground storage tank of a neighborhood gas station. The only effect this project will be having on the gas station parcel is the construction of concrete gutters and sidewalks. Because the plans on this project have not yet become final, and the project has not been bid or constructed, this information is entirely preliminary containing opinions and recommendations which are exempt from public inspection pursuant to KRS 61.878(1)(j) of the open records law.

To facilitate this office's review, the Cabinet furnished us with a copy of the disputed memorandum. 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 if the Transportation Cabinet properly relied on KRS 61.878(1)(j) in partially denying the Bryan Station Neighborhood Association's request for public records. For the reasons set forth below, and upon the authorities cited, we conclude that the Cabinet's response was entirely consistent with the Open Records Act.

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[.]” This exception is intended to protect the integrity of the agency's internal decision making process by encouraging the free exchange of opinions and recommendations. It has thus been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. The purpose underlying this exemption is discussed at page 4 of OAG 88-85 wherein this office observed:

[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 case 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, 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. See also, University of Kentucky v. Courier-Journal and Times, Ky., 830 S.W.2d 373 (1992), Gardner Harris v. City of Louisville, Ky. App., 42 K.L.S. 10, 7 (9/1/95) (motion for discretionary review pending).

We have examined the memorandum which gives rise to this appeal. Although we cannot disclose its contents, we believe that it can properly be characterized as a preliminary interoffice memorandum, relating to a project that has not yet been finalized, in which opinions are expressed and recommendations are made. Thus, the memorandum falls squarely within the parameters of KRS 61.878(1)(j). We therefore conclude that the Transportation Cabinet properly relied on the cited exemption in partially denying the Bryan Station Neighborhood Association's request.

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:

Richard H. Deters

General Counsel

Transportation Cabinet

State Office Building

Frankfort KY 40601

Samuel T. Isaac, Chairman

Bryan Station Neighborhood Association

1750 Bryan Station Road

Lexington KY 40505