June 24, 1997

In re: Liz Natter/Cabinet for Economic Development

Open Records Decision

The question presented in this appeal is whether the Cabinet for Economic Development properly relied on KRS 61.878(1)(i) and (j) in denying Liz Natter's February 14, 1997, request for "any reports, records, or documents generated in the last ten years of or relating to any site evaluation(s) for industrial sites in Union County, Kentucky." Relying on KRS 61.878(1)(c), (i), and (j), the Cabinet characterized the disputed records as "preliminary drafts and recommendations, correspondence with private individuals or material which is confidential." For the reasons which follow, we affirm, in part, the Cabinet's denial of Ms. Natter's requests. Nevertheless, we find that its response was substantively deficient and reflects a liberal application of KRS 61.878(1)(i) and (j) which the language of those exceptions, coupled with the statement of policy codified at KRS 61.871, do not authorize.

We begin by noting that the Cabinet's response was substantively deficient insofar as it failed to comply with the requirements of KRS 61.880(1). That statute provides that:

An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.

In Edmondson v Alig, Ky. App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act - much less . . . amount [ ] to substantial compliance.

Id. at 858 (emphasis added).

In its original response, the Cabinet relied on KRS 61.878(1)(c), (i), and (j) as the statutory bases for denying Ms. Natter access to the disputed records. In a supplemental response to Ms. Natter's appeal, the Cabinet focused on the latter two exceptions, and elaborated on their application to the types of records withheld, explaining:

Ms. Natter directs her request to site evaluations. As background information, in this instance, Union County requested the Cabinet's assistance in preparing site evaluations for proposed industrial sites in the county. The Division of Site Evaluation, a division of the Job Development department in the Cabinet for Economic Development, is responsible for responding to such requests from counties, persons or entities, to investigate geographic sites for possible economic development. The Division of Site Evaluation evaluates the proposed site according to the criteria set forth on "The Physical Characteristics of a Good Site," . . . which was provided to Ms. Natter pursuant to her request.

During the Division's process of performing an evaluation on the geographic site, preliminary correspondence between private individuals may occur which would be protected from disclosure pursuant to KRS 61.878(i) [sic]. Any reports, records or documents generated by the Division of Site Evaluation pursuant to a county, person or other entity's, [sic] request are preliminary in that they do not represent any final action of a public agency. Rather, any reports, records or documents generated are preliminary correspondence, recommendations or memoranda in which opinions as to the desirability of the site for industrial development are expressed. (See KRS 61.868(j)) [sic].

Any report, record or document generated by the Division of Site Evaluation which is then sent to the person regarding the evaluation may be utilized by that person to make the decision of whether to pursue or not pursue further action. Such action may include pursuit of funding of a particular site, at the local, state or federal level, or further investigation based upon the opinions expressed. Obviously, the Division of Site Evaluation is performing a service to anyone who holds a piece of property and who wishes expert advice on ways to market or improve the property for development. No decisionmaker at the Cabinet for Economic Development (or any attached Board) relies strictly on this Division's evaluations in making funding decisions.

Therefore, the reports, records and documents generated by the Division do not become part of a final agency decision subject to disclosure. All information provided is preliminary and thus not subject to disclosure under the Kentucky Open Records Act.

Although in its supplemental denial the Cabinet described the functions of the Division of Site Evaluation, and the types of records which might be generated in the course of an evaluation, it did not provide "particular and detailed information" in response to Ms. Natter's specific request. "A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirements of the Act." 97-ORD-41, p. 4. In the latter open records decision, the Attorney General observed:

While neither this office nor [Kentucky's courts] have ever required an itemized index correlating each document withheld with aspecific exception, such as that required by federal courts in Vaughn v Rosen, 484 F.2d 820 (D.C. Cir. 1973) cert. denied 415 U.S. 977 (1974), . . . we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable.

Id. at 6. Simply stated, a conclusory assertion that the requested records are exempt is wholly inadequate. We urge the Cabinet for Economic Development to bear these observations in mind in evaluating future open records requests.

Pursuant to KRS 61.880(2)(c), we reviewed the disputed records on June 16, 1997. Although we cannot disclose the content of those records, we can describe, in general terms, the nature of the records implicated by Ms. Natter's request and the application of the cited exceptions to them. The records consist of two file folders, the first labeled "Morganfield" and the second labeled "Sturgis-Alcoa State." The Morganfield file contains voluminous correspondence and memoranda from and to Bob Fouts, Assistant Director of the Site Evaluation Division, and various public officials and representatives of private industries. The file also contains an industrial site questionnaire, prepared by the Division of Site Evaluation, in which information relating to acreage, pricing, ownership, zoning and land use, availability of treated water, natural gas, sewage disposal, electricity, telephone, transportation, and the land and environment is compiled. In addition, the file contains various maps, aerial photographs, press clippings, apparent public relations releases, and business cards.

The second file, labeled "Sturgis-Alcoa State," is significantly less voluminous, and contains several maps and aerial photographs. It, too, contains an industrial site questionnaire prepared by the Division. In addition, the file contains a Union County, Kentucky 1983 Plat Book, published by Mid American Publishing Services, and a business card. The file does not contain any correspondence or memoranda.

In denying Ms. Natter access to all of these records, the Cabinet chiefly relies on KRS 61.878(1)(i) and (j). These exceptions authorize nondisclosure of:

(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.

From these exceptions "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality." Beckham v Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). This conclusion must, however, be tempered by the knowledge that "free and open examination of public records is in the public interest, and the exceptions provided for by KRS 61.878 . . . shall be strictly construed." KRS 61.871. Clearly, then, the Open Records Act "exhibits a general bias favoring disclosure." Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 327 (1992). It is with these principles in mind that we proceed with our analysis.

In construing the cited exceptions, the Attorney General has observed:

KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas. They have 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 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; and OAG 90-97. The purpose underlying these exemptions 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.

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 page 659, the court reasoned:

It is the opinion of this court that subsection (g) and (h) [now codified as subsection (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 86-24 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld under KRS 61.878(1)(i) and (j) 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 Divison 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 note 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, p. 3.

94-ORD-118, pp. 2 - 4.

Like Internal Affairs, the Division of Site Evaluation "has no independent authority to issue a binding decision." City of Louisville at 659. It "investigate[s] geographic sites for possible economic development [,]. . . . [and] generate[s] . . . memoranda in which opinions as to the desirability of the site for industrial development are expressed." These memoranda "may be utilized . . . to make the decision of whether to pursue or not pursue further action." However, "no decisionmaker . . . relies strictly on this Division's evaluations." For this reason, we concur with the Cabinet in its view that all correspondence, memoranda, surveys, and reports in which opinions are expressed and policies formulated or recommended may properly be withheld pursuant to KRS 61.878(1)(j) unless they were subsequently incorporated into the final action taken on the project. If, for example, Union County based its decision to proceed with the Morganfield industrial expansion project (or not to proceed with the project), even in part, on reports prepared and recommendations made by the Division of Site Evaluations, and those reports and recommendations were incorporated into records reflecting the county's final action, they "forfeit[ed] their preliminary status and are . . . subject to inspection." 94-ORD-118, p. 4. The remaining correspondence, memoranda, and reports retained their preliminary status and may be withheld.

We do not believe that KRS 61.878(1)(i) and (j) can be read so broadly as to include maps, aerial photographs, plat books, press clippings, PR releases, and business cards. These records cannot be characterized as preliminary drafts or notes, pursuant to KRS 61.878(1)(i), or preliminary recommendations or preliminary memoranda in which opinions are expressed, pursuant to KRS 61.878(1)(j). The purpose for which these exceptions were enacted, namely to protect the integrity of the decision-making process and insure governmental confidentiality, where necessary, is not served by the nondisclosure of these records. Unless the records contain handwritten notations or drawings which are of a preliminary character, they must be released in their entirety. If they do, the Cabinet is obligated to mask the excepted notations or drawings, and make the unexcepted portions of those records available for inspection. KRS 61.878(4).

Having said this, we make one final point. The Cabinet for Economic Development argues that the entire process of site evaluation is shielded from public oversight by KRS 61.878(1)(i) and (j). If we accept this interpretation, the only action which is subject to public disclosure is the final action taken by the "counties, persons or entities" which request that it investigate geographic sites for possible economic development. In our view, this interpretation of KRS 61.878(1)(i) and (j) is overinclusive and does violence to the spirit, if not the letter, of the Open Records Act. While we recognize that the Cabinet cannot operate in a fish bowl, we believe that its characterization of all records generated by the Division of Site Evaluation as preliminary would result in masses of material being forever shielded from public inspection because the requesting county, person, or entity never reached a final decision. "The public has an interest in decisions deferred, avoided, or simply not taken for whatever reason, equal to its interest in decisions made, which from their very nature may more easily come to public attention than those never made." Vaughn v Rosen, 523 F.2d 1136, 1146 (D. C. Cir. 1975). In other words, the public has a legitimate interest in the final actions taken by public agencies, including the decision to take no action. 94-ORD-27; 94-ORD-76. The Cabinet should be guided by these principles in reevaluating its obligations under 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.


A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Liz Natter

Democracy Resource Center

Suite A

253 Regency Circle

Lexington KY 40503

Robin F. Kinney

General Counsel

Cabinet for Economic Development

Capital Plaza Tower

Frankfort KY 40601

Phyllis Bruning

Economic Development Cabinet

Capital Plaza Tower

Frankfort KY 40601