NOT TO BE PUBLISHED
July 11, 1997
In re: Mark F. Sommer/Revenue Cabinet
Open Records Decision
This is an appeal from the Revenue Cabinet's denial of Mark F.
Sommer's request to inspect "all documents and writings
which support an assertion by Revenue Cabinet employees . . .
that Jeff Tafel, an employee of Vencor, Inc., stated during a
recently-completed Revenue Cabinet sales and use tax compliance
audit that software acquired by Vencor, Inc. from APACHE, Inc.
was 'as canned as can be.'" The question presented in this
appeal is whether the Cabinet properly relied on KRS 61.878(1)(i)
in denying Mr. Sommer's request. For the reasons which follow, we
conclude that the Cabinet's reliance on the cited exception was
misplaced, and that it therefore violated the Open Records Act in
denying Mr. Sommer's request.
KRS 61.878(1)(i) excludes from the mandatory disclosure
provisions of the Open Records Act:
Preliminary drafts, notes,
correspondence with private individuals other than correspondence
which is intended to give notice of final action of a public
From this exception "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 government
confidentiality." Beckham v Board of Education of
Jefferson County, Ky., 873 S.W.2d 575, 578 (1994).
In an early opinion, this office
analyzed KRS 61.878(1)(i), then codified as KRS 61.878(1)(g),
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.
OAG 78-626, p. 2. We relied on this opinion in 93-ORD-9 to
affirm the City of Louisville's denial of a request to inspect a
handwritten note which appeared on an invoice. At page 4 of that
decision, we held:
We have examined the unredacted record and conclude that Mr.
Lukins properly characterized the redacted portion as a
preliminary note or recommendation. In it, one employee proposes
a change in policy to another employee. Nothing in the note could
be construed to be final action of the City, nor does it appear
to have been approved or incorporated into final action of the
City. We therefore concur with Mr. Lukins in his view that the
redacted record falls squarely within the parameters of KRS
61.878(1)(h) and (i). The City properly redacted that portion of
the invoice containing a handwritten note in which a new policy
See also, OAG 78-816; OAG 83-338.
Nevertheless, "once such notes . . . are adopted by the [public agency] as part of its action, the preliminary characterization is lost, as is the exempt status." Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 956 (1983); see also City of Louisville v Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, 659 (1982) (holding that if the agency "adopts . . . notes . . . as part of [its] final action, clearly the preliminary characterization is lost to that extent") and University of Kentucky v Courier-Journal, Ky., 830 S.W.2d 373, 378 (1992) (holding that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). Thus, "those documents defined in Subsection [(i)] which become a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records. . . ." Board of Medical Licensure at 956.
It is the opinion of this office that the note supporting an
assertion made by Revenue Cabinet employees that Vencor employee
Jeff Tafel stated during a sales and use tax compliance audit
that software acquired by Vencor from Apache, Inc., was "as
canned as canned can be" was adopted by the Cabinet as the
basis of its final decision to tax the software, and thus
forfeited its preliminary characterization. At page three of the
Agents' Narrative Report, the following statement appears:
The purchases of software from Apache Software are being taxed because they are canned software. In discussions with the taxpayer's systems engineer, Mr. Jeff Tafel, he stated that the software purchased from Apache was "as canned as canned can be."
Our review of the disputed record, conducted pursuant to KRS
61.880(2)(c), confirms this fact. Clearly, the Cabinet relied on
Mr. Tafel's statement, which is memorialized in that record, as
the basis for its final action. Compare 93-ORD-9, p. 4 (holding
that "nothing in the note could be construed to be final
action of the [agency], nor does it appear to have been approved
or incorporated into final action of the [agency]").
Accordingly, we find that the Cabinet erred in withholding the
relevant portion of the disputed record.
Our review of that record discloses additional comments which
appear to be unrelated to Mr. Tafel's statement and the decision
to tax the software. Pursuant to KRS 61.878(4), the Cabinet may
separate any excepted materials in the record for which it can
articulate a statutory basis for denial and make the nonexcepted
notes of Mr. Tafel's statements available for examination.
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
Amye L. Bensenhaver
Mark F. Sommer
Greenebaum Doll & McDonald
3300 National City Tower
101 South Fifth Street
Louisville KY 40202-3197
Susan F. Stivers
Division of Legal Services
P. O. Box 423
Frankfort KY 40602-0423