The Kentucky Court of Appeals has ruled that the public is entitled to Louisville Metro's Amazon HQ2 proposal — submitted in October 2017 at a cost to taxpayers of $70,000 and a total cost of $170,000 — under Kentucky's open records law.
https://www.facebook.com/419650175248377/posts/480319312514796?s=184659…
Amazon rejected Louisville's proposal In January 2018. On that date, the court concluded in its 14 page opinion designated "To Be Published" (meaning that it can be cited as precedent in future open records cases), Louisville's proposal no longer qualified as preliminary under the preliminary documents exceptions to the open records laws, KRS 61.878(1)(i) and (j).
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230
The Court of Appeals held that Louisville Metro's reliance on the preliminary documents exceptions — along with an exception authorizing non disclosure of records relating to "a prospective location of a business or industry where no previous disclosure has been made" — was misplaced. The court therefore found that Louisville Metro violated the law in its February 2018 denial of the Courier Journal's request.
The court quickly disposed of Louisville's argument that the records related to the previously undisclosed prospective location of a business or industry, noting that "Amazon's interest in relocating was extensively publicized" and that "this publicity amounted to public disclosure of Amazon's interest in relocating within the Commonwealth."
The court directed its attention to Louisville's argument that the Amazon proposal was preliminary because Amazon "did not definitely reject" its bid and that the bid "remains subject to reconsideration or amendment at any time that Amazon chooses to revisit it."
Rejecting a line of attorney general's open records decisions that reach back to 1990 and hold that unaccepted incentive proposals remain preliminary because no final agency action is taken on them, the Court of Appeals held that "final action occurs when the final issue is definitely resolved, either by action or a decision not to take action."
Final action in this case, the court reasoned, occurred when "Amazon excluded Louisville Metro from its list of finalists." At that point, "the proposal was no longer subject to change" and the proposal "lost its status as preliminary."
There is a greater issue presented here. What does this signal for other records long recognized as preliminary? What, for example, does the court's holding mean for internal agency records in which agency officials discuss various options to a particular problem, weighing various recommendations and proposals, some of which lead nowhere? Does today's holding mean that those records documenting recommendations or proposals that were never acted upon become public when the agency finally acts — or decides not to act — on the particular problem?
In attorney general's decisions dating back to the eighties, the preliminary documents exceptions were said "to protect the integrity of the agency's internal decision making process by encouraging the free exchange of opinions and recommendations." Disclosure of records containing recommendations and proposals that were not adopted as the basis of final agency action — or the decision to take no action — would have "a chilling effect" on those discussions.
This position, it can be argued, found support in case law recognizing that "once such recommendations are *adopted as part of [the agency's] action*, the preliminary characterization is lost as is the exempt status."
Over time, this analysis has been widely abused by public agencies to avoid disclosure of all pre-decisional records even after final action was taken or a decision not to act was made. Indeed, it reached absurd lengths in the recent dispute concerning access to the actuarial analysis of the governor's 2017 pension plan. In that case, which is now in the Court of Appeals, the governor's budget director invoked the exceptions as the basis for denying access to the analysis notwithstanding the fact that it was conducted *after* the plan was finalized and released to the public and therefore post-decisional.
https://www.google.com/amp/s/amp.courier-journal.com/amp/1157457001
Clearly, today's resolution of the open records issue concerning the public's right of access to Louisville Metro's Amazon HQ2 proposal makes the determination of whether a record is exempt or nonexempt much easier. Under the rule announced in this opinion, once final action is taken or a decision not to act is made, predecisional records are publicly accessible.
It's a clear victory for open government but one we can expect to see challenged by Louisville Metro in a final "bid" for judicial review by the Kentucky Supreme Court. The issue therefore may not be finally resolved for one or more years (if the Court agrees to review the case).
In the meantime, we will try to sort out what final action is in other records access contexts, whether today's opinion has broader implications, or whether it was intended to be limited to these particular facts in this particular case.
