NOT TO BE PUBLISHED
In re: Royden K. Cullinan/City of Louisville
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
#703
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