July 29, 1997

In re: Royden K. Cullinan/City of Louisville

Open Records Decision

This is an appeal from the City of Louisville's response to Royden K. Cullinan's May 30, 1997, request to inspect "correspondence from City of Louisville legal counsel to the U. S. Securities and Exchange Commission." Mr. Cullinan subsequently clarified his request to indicate that the subject of the requested correspondence was the Louisville Policemen's Retirement Fund. Relying on 96-ORD-277 and KRS 61.878(1)(j), the city denied Mr. Cullinan's request, noting that "preliminary documents . . . do not lose their exempt status unless adopted by the agency as part of some final action." (Emphasis in original.) For the reasons which follow, we concur.

In 96-ORD-277, this office addressed the applicability of the cited exception to the same record. The record was described as:

Correspondence from an attorney, retained by the city to give legal counsel to the mayor, to the Securities and Exchange Commission in which the attorney engages in preliminary discussions, expresses opinions, and describes concerns relating to the basis for a possible investigation and enforcement action.

There we held that the letter "in its entirety, falls squarely within the parameters of KRS 61.878(1)(j) as a preliminary document in which opinions are expressed." 96-ORD-277, p. 2.

This office has, on more than one occasion, made clear its view that not all preliminary documents lose their exempt status once final action is taken. See, e.g., 93-ORD-103 and 93-ORD-25. In 92-ORD-1024, we held that KRS 61.878(1)(j) along with KRS 61.878(1)(i):

have been interpreted to authorize nondisclosure of preliminary reports, worknotes, and memoranda containing the opinions, observations, advice, and recommendations of personnel within an agency, as well as outside of an agency. OAG 86-54; OAG 87-10; OAG 87-64; OAG 89-69; OAG 91-23; OAG 91-108. These subsections are intended to insure the integrity of the decision making process by protecting all predecisional documents. Documents which fall within the parameters of these exceptions retain their exempt status unless they are adopted as final agency action. Only those records which are so adopted must be made available for inspection inasmuch as they thereby lose their preliminary status.

This view comports with the courts' decisions in City of Louisville v Courier-Journal and Louisville Times Co., Ky. App., 637 SW2d 658, 659 (1982) (holding that if the agency "adopts . . . notes or recommendations as part of [its] final action, clearly the preliminary characterization is lost to that extent"), Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 633 SW2d 953, 956 (1983) (holding that "documents defined in subsection [(j)] which become a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records"), University of Kentucky v Courier-Journal & Louisville Times Co., Ky., 830 SW2d 373 (1992) (holding that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action), and Courier-Journal v Jones, Ky. App., 895 SW2d 6, 8 (1995) (holding 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"). We believe that the unpublished Court of Appeals opinion which Mr. Cullinan cites is inapposite. In Gardiner Harris and Courier-Journal and Louisville Times Co. v City of Louisville, No. 94-CA-1840-MR (Ky. App. 9/1/95), the court construed KRS 61.878(1)(h) and (i), neither of which is at issue in this appeal.

The facts giving rise to this appeal have apparently not changed since we issued 96-ORD-277. Mr. Cullinan acknowledges as much by noting that "there is no investigation pending by the Securities and Exchange Commission relative to the requested records. Nor is there such an investigation pending by the City of Louisville." Obviously then, there is no final agency action into which the disputed correspondence could have been incorporated. It therefore retains its preliminary status.

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:

Royden K. Cullinan

1406 Browns Lane

Louisville KY 40207

Paul Guagliardo

Senior Attorney

Department of Law

City of Louisville

City Hall, Rm. 200

Louisville KY 40202-2771