NOT TO BE PUBLISHED 

March 5, 1993

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IN RE: Madelynn Coldiron/Transportation Cabinet

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Transportation Cabinet relative to Ms. Madelynn Coldiron's January 7, 1993, request to inspect and copy the Combined Pavement Condition Report prepared by the Cabinet in 1991 for the 1992 paving season. Ms. Coldiron is a staff writer for The State Journal, and her request was made under the Kentucky Open Records Act.

On behalf of the Transportation Cabinet, Mr. Joseph K. Heady, Principal Assistant to the Custodian of Records, responded to Ms. Coldiron's request on January 8, 1993. He advised her that "the appropriate office is researching their files and anything not protected by law will be made available to you." In a follow-up letter dated January 13, 1993, Mr. Heady altered his position, explaining:

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In her letter of appeal to this Office, Ms. Coldiron takes the position that the report "simply provides a guideline for the roadwork for the upcoming paving season." As such, she argues, it is a "final document." Continuing, Ms. Coldiron observes:

The report, she notes, lists each road in Kentucky, along with a description of its length, location, and an evaluation of its condition. In addition, it contains recommendations for improving each road.

On January 27, 1993, this Office requested additional information from the Cabinet to substantiate its position pursuant to KRS 61.880(2). Specifically, we asked the Cabinet to explain how a report prepared in 1991 for the 1992 paving season could be characterized as preliminary. For example, were the findings in the report rejected and a separate report adopted? Was final action never taken on the report, and if not, what action must still be taken to finalize the report? In addition, we asked that the Cabinet provide us with a copy of the Combined Pavement Condition Report to facilitate our review.

On February 1, 1993, Mr. Heady responded to our request. He explained that the Cabinet uses the report as one of many factors in the development of the Resurfacing Program. Elaborating on this statement, he observed:

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Since the Combined Pavement Condition Report is "one of several technical and administrative considerations that go toward making up the final Annual Resurfacing Program," he argues that release of the report "could mislead the public regarding their use." Mr. Heady did not provide this Office with a copy of the Report, but instead submitted a copy of the Cabinet's internal policies and procedures governing pavement management.

Section 40 - 15.0200 of that document states that the Pavement Management Branch "shall be primarily responsible for the identification, evaluation and ranking of pavements for improvements . . . ." (Emphasis in original.) The Cabinet's policies and procedures further provide:

Section 40 - 15.0322. Although the Combined Pavement Condition Report is not directly referenced in the document, and no explanation was offered by Mr. Heady, Section 40 - 15.0300 states that a report summarizing results of evaluations must be prepared each year by the Pavement Management Branch for submission to, among others, the State Highway Engineer.

The document provided to this Office by Mr. Heady does not address review procedures within the Cabinet, but it is our understanding that the Combined Pavement Condition Report is then submitted to the Director of the Division of Maintenance and the State Highway Engineer who use the Report, among other

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factors, to make recommendations on the roads to be resurfaced or repaired. Those recommended projects are put out for bid. The ultimate decision, however, rests with the Cabinet Secretary who authorizes final action by signing off on the bids.

In rebuttal, Ms. Coldiron notes that the Cabinet concedes that the Report is not a recommendation and that a separate list is adopted independent of the Report. This, she maintains, bolsters her argument that the Report is a final document. Nor, she asserts, does the fact that the Report is only one of several factors considered by the Cabinet have any bearing on whether it is preliminary or final. "The public has a right to know what information is used in the decision-making process and whether one type of influence is weighted more heavily than others."

We are asked to determine whether the Transportation Cabinet properly denied Ms. Coldiron's request to inspect and copy the Combined Pavement Condition Report prepared in 1991 for the 1992 paving season. For the reasons set forth below, we conclude that the Cabinet's response was procedurally deficient in that Mr. Heady did not cite an exception to the Open Records Act authorizing nondisclosure of the document, as required by KRS 61.880(1). We also conclude that the Cabinet erred in failing to release any "element" of the report that was incorporated into the Cabinet's Annual Resurfacing Program, i.e., any of the recommendations contained in the Report which were implemented by the Cabinet in that program. Those portions of the Report lost their preliminary characterization to the extent that they were adopted by the Cabinet. However, it is the opinion of this Office that, with the exceptions noted, the Combined Pavement Condition Report is exempt from public inspection pursuant to KRS 61.878(1)(h) and (i).

KRS 61.878(1)(h) and (i) authorize the nondisclosure of:

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These exemptions are intended to protect the integrity of the agency's internal 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. OAG 86-64, OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; OAG 90-97. The purpose underlying these exemptions is discussed at p. 4 of OAG 88-85, where this Office opined:

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 p. 659, the court reasoned:

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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 under KRS 61.878(1)(h) and (i) 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.)¹

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: