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 agency.

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), observing:

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 was proposed.

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

Attorney General

Amye L. Bensenhaver

Attorney General


Distributed to:

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

Revenue Cabinet

P. O. Box 423

Frankfort KY 40602-0423