May 5, 1997

In re: Foster Ockerman/Lexington-Fayette Urban County Government

Open Records Decision

The question presented in this open records appeal is whether the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(i), (j), and (k) in denying Foster Ockerman's March 24, 1997, request for copies of the "typed and handwritten notes used by [Councilmember] Gloria Martin to prepare the Findings proposed by her in the Zone Change Hearing of Roger F. Hougham held on March 6, 1997." We do not agree with the Lexington-Fayette Urban County Government that we are precluded from issuing a decision in this appeal because the issue of the zone change is currently before the courts. It is the opinion of this office that Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Ockerman's request.

On March 6, the Lexington-Fayette Urban County Council held a public hearing to determine whether it should accept the recommendation of the Lexington-Fayette Urban County Planning Commission to approve a zone change application submitted by Mr. Ockerman's client, Roger Hougham. The Council disapproved the Commission's recommendation, and denied the zone change. On March 24, Mr. Ockerman requested access to Ms. Martin's typed and handwritten notes from the March 6 hearing under the Open Records Act. As noted, that request was denied, and on April 4 Mr. Ockerman initiated this open records appeal to the Attorney General.

One day earlier, Mr. Ockerman filed suit on behalf of his client in Fayette Circuit Court, challenging the denial of Mr. Hougham's application for zone change. In paragraph 17 of the circuit court action, Mr. Ockerman stated:

Appellant is informed, and believing the information to be true, alleges that Council Member Martin, when making a motion for adoption of Findings, read from printed material and notes, some of which were prepared prior to the hearing. Appellant requested the Council Clerk to provide Appellant with copies of said material and the request was denied. Appellant filed a request for these documents under the Open Records statute and the request was denied. Appellant alleges that these records, if prepared prior to the hearing, are material the determination of the issues presented by this appeal and action and Government and the Council Clerk should be required to submit them as part of the record of the hearing. The refusal constitutes a denial of due process.

Lexington-Fayette Urban County Government argues that because "this matter is currently being litigated, the Attorney General's Office is precluded from rendering an opinion on this issue." In support, Lexington-Fayette Urban County Government cites 40 KAR 1:020(4), which prohibits the Attorney General from rendering opinions in response to questions involving matters being litigated, OAG 88-78, and 93-OMD-81.

40 KAR 1:020(4) is inapplicable, and the cited opinions distinguishable. In OAG 88-78, the Lexington Herald-Leader requested access to records related to the NCAA's inquiry into the University of Kentucky's athletics program. Shortly thereafter, the Courier-Journal filed a joint petition for declaration of rights in the Fayette Circuit Court, the "specific focus" of which was the issue whether records relating to the NCAA inquiry must be made available for inspection under the Open Records Act. OAG 88-78, p. 3. In 93-OMD-81 the complainant simultaneously initiated an open records appeal to the Attorney General and an action in circuit court, alleging violation of the Open Meetings Act, and requesting the same relief in both forums. At page 3 of OAG 88-78, we concluded:

It is clear from KRS 61.882 that the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions. Under such statutory circumstance, it would be improper for this office to attempt to substantively determine an open records question, when the same question is before a circuit court.

Echoing this view, in 93-OMD-81 we held that "a person cannot seek relief from [the Attorney General] under KRS 61.846 when the same and additional questions under the Kentucky Open Meetings Act are currently pending before a circuit court under KRS 61.848." 93-OMD-81, p. 2.

Where the issue before the circuit court is whether disputed records must be made available for inspection under the Open Records Act, the court's authority "to substantively determine [the] open records question" clearly supercedes that of the Attorney General. This is not the case here. In his circuit court action, Mr. Hougham challenges the council's denial of his application for zone change. As a tangential matter, he alleges that the disputed records are "material to the determination of the issues presented by [the] appeal," and states that the Lexington-Fayette Urban County

Government "should be required to submit them as part of the record of the hearing." On these facts, it cannot be persuasively argued that the specific focus of Mr. Hougham's circuit court action is disclosure of the disputed records under the Open Records Act. For the same reason, we are not precluded from issuing a decision in this appeal by 40 KAR 1:020(4). Simply stated, the open records issue is not the matter being litigated. We therefore proceed to our analysis.

The records in dispute consist of typed and handwritten notes used in the presentation of proposed findings of fact to the Lexington-Fayette Urban County Council. The proposed findings were adopted by the council. It is this record, namely the findings of fact adopted by the council, which must be made available for public inspection, and not the recommendations and notes which were used to prepare those findings. This position is based on the exceptions to public inspection found at KRS 61.878(1)(i) and (j).

These exceptions authorize nondisclosure of:

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

Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.

The Attorney General has often commented on the purposes underlying these exceptions. We have observed:

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. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97. The purpose underlying the 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 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, 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. At p. 659, 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.

See also, OAG 86-64 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld as long as the reports neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency); OAG 89-34 (holding that a draft report submitted by the U.S. EPA to Kentucky's Division of Air Quality is a preliminary document, and does not lose that character by having been submitted for review and written comment of the state agency); OAG 90-97 (holding that a public official's letter to the Parole Board, containing his opinion as to whether the Board should grant parole, is exempt from inspection unless incorporated into or made a part of the Board's final decision on the matter). [Footnote omitted.]

In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. Thus, in OAG 89-69 this Office held that a legal memorandum, which was originally preliminary in character, became a public record when it was incorporated into a notice of agency action. There, we observed:

The [notice of agency action] not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet for the action taken. The letter states that the memorandum had been requested, that it was now 'in hand,' what was the recommendation, and that 'therefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.

OAG 89-69, at p. 3.

94-ORD-132, p. 3-6.

The most closely analogous open records decision bearing on this issue is OAG 91-161. In that decision, the requester sought access to the report prepared by the chairman and vice chairman of the University of Louisville's Board of Trustees representing the Board's annual evaluation of the University's president along with supporting documentation. At issue was a three page typewritten document which was prepared as an aid to the chairman in summarizing the evaluation to the full board. We rejected the requester's argument that this document was incorporated into the Board's final report, thereby forfeiting its preliminary characterization when it was used by the chairman in making his presentation to the full board.

The reasoning of this decision, coupled with the other authorities cited, support the view that notes which are used in preparing comments for a public body are excluded from inspection by KRS 61.878(1)(i) and (j). In an early opinion, this office observed:

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)(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.

OAG 78-626, p. 2. The typed and handwritten notes at issue in this appeal are more closely akin to work papers used by a public officer in hammering out official action than records reflecting that official action. Under the Open Records Act, the public is entitled to inspect records reflecting the official action taken, in this case the Findings of Fact adopted by the Lexington-Fayette Urban County Council, and not the work papers used in arriving at that action. It is far beyond the scope of our duties to comment on the question whether the council should be required to submit them as part of the record of the hearing in Mr. Hougham's circuit court action.

Because KRS 61.878(1)(i) and (j) support Lexington-Fayette Urban County Government's decision to withhold the typed and handwritten notes used by Ms. Martin, we see no need to assess its argument that the attorney client privilege also supports nondisclosure. We therefore do not address this issue.

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.




Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Foster Ockerman

Martin, Ockerman & Brabant

200 North Upper Street

Lexington KY 40507

Glenda Humphrey George

Corporate Counsel

Lexington-Fayette Urban County Government

200 East Main Street

Lexington KY 40507