April 3, 1997

In re: Donald L. Cox/Kentucky Racing Commission

Open Records Appeal

This matter comes to the Attorney General on appeal from the Kentucky Racing Commission's partial denial of the open records request of Donald L. Cox, Esq., for agency documents relating to Dueling Grounds Racetrack. By letter dated February 20, 1997, Mr. Cox, in relevant part, requested copies of the following documents:

Copies of all documents relating to Simpson County Steeplechase Association, Inc., d/b/a Dueling Grounds Racecourse which are dated within the last 15 months and are from or to the Commission, its officers, agents, attorneys, employees, commissioners, or anyone on its behalf, from persons other than Dueling Grounds.

In response to this request, Ms. Peggy Lacy Moore, Executive Secretary, Kentucky Racing Commission, by letter dated February 25, 1997, itemized and provided Mr. Cox with thirty records which met the request. However, relying upon KRS 61.878(1)(i) and(j), she denied access to seven documents on the ground that none of the records withheld were intended to give notice of final agency action and, thus, were preliminary in nature.

By follow-up letter to Mr. Cox, dated March 11, 1997, Ms. Moore described the seven documents withheld as “handwritten or typewritten notes or memos prepared by employees, or agents of the Commission, or other public officials to the Commission.” She further explained that “none of which are intended to give final action of the Commission and are therefore preliminary in nature.”

In his letter of appeal, dated March 10, 1997, Mr. Cox argued that, other than citing KRS 61.878(1)(i) and (j), the Commission did not provide any basis for withholding the records in question.

On March 13, 1997, we sent a “Notification of Receipt of Open Records Appeal” to the Commission and enclosed a copy of Mr. Cox's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Moore provided this office with a response to the issues raised in the appeal. In her response, Ms. Moore described the seven documents which had been withheld as follows:

The documents consist of a request from the attorney for the Racing Commission to the executive director of the Commission for comments on a preliminary memo regarding the licensing of race tracks and Dueling Grounds, a brief note from another agency to the Commission concerning newspaper articles and the Commission's file regarding Dueling Grounds, one handwritten note from an employee of the Commission regarding a telephone call from a third party requesting information about the track, two handwritten notes from an employee of the Commission regarding information on a bank account of the Commission's which held some funds received by the Commission from the track, and two handwritten notes of an employee of the Commission regarding some then recent history about the track.

To facilitate this office's review, the Commission furnished us with copies of the documents in question. The copies were not disclosed to other parties, and have since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030 Section 3.

We are asked to determine whether the Commission properly relied on KRS 61.878(1)(i) and (j) in denying access to the seven documents. For the reasons which follow, we conclude that the Commission properly denied Mr. Cox's request to inspect the documents at issue in this appeal.

Among the public records which may be excluded from public inspection are those set forth in KRS 61.878(1)(i) and (j):

(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.

This office has consistently concluded that intraoffice and interagency records are exempt from public inspection, particularly where the documents are preliminary (not evidence of final agency action) and contain opinions of the writers. 95-ORD-54; 93-ORD-125; OAG 90-66; OAG 86-5; OAG 85-104.

In OAG 78-626, at p. 2, this Office recognized:

Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (i) ]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.

In considering the underlying purpose of these exemptions, this office has previously observed:

One of the purposes of KRS 61.878(1) [ (i) and (j) ] appears to us to be to allow the free flow of discussion among governmental officials which is preliminary to the final decision. Consequently recommendations 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 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.

OAG 88-85, at p. 4.

We believe that this view is consistent with the rule announced by the Kentucky Supreme Court in University of Kentucky v Courier-Journal, Ky., 830 S.W.2d 373 (1992). In that case, the Court held that documents that were once preliminary in nature lose their exempt status only if they are adopted by the public agency as part of its final action. See also, Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982).

We have examined the seven documents which gave rise to this appeal. Although their contents will not be disclosed, we concur with Ms. Moore's description and characterization of the records withheld and conclude they were properly withheld from disclosure, pursuant to KRS 61.878(1)(i) and (j), as preliminary recommendations, intra-agency and inter-agency notes, and handwritten notes, none of which indicate they were intended to give notice of final agency action.

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:

Donald L. Cox, Esq.

Lynch, Cox, Gilman & Mahan

500 Meidinger Tower

Louisville KY 40202

Peggy Moore

Kentucky Racing Commission

Building C

4063 Iron Works Pike

Lexington KY 40511