Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Covington properly relied on KRS 61.878(1)(i) and (j) in denying Kentucky Post staff reporter Bob Driehaus's request for "a copy of the report on the Covington housing department drafted by the U. S. Department of Housing and Urban Development . . . and all written responses to the report that have been produced by the city of Covington. . . ." For the reasons that follow, we affirm the city's denial of Mr. Driehaus's request.
On behalf of the City of Covington, city attorney Joseph T. Condit explained that the HUD report on the Covington Housing Department is a draft which is excluded from public inspection by KRS 61.878(1)(i) and (j). All written responses to the report, Mr. Condit maintained, are similarly exempt since the city "has not determined what action, if any, will be taken based on that report . . . ." Mr. Condit relied on OAG 88-24, in which the Attorney General affirmed a city's denial of a request for a draft audit conducted by a federal agency, to support the city's position. We agree with the city's analysis, and find that the cited opinion, along with a number of subsequent open records opinions affirming it, are controlling.
KRS 61.878(1)(i) and (j) exclude 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.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The rationale underlying these exemptions is succinctly set forth at page 7 of 93-ORD-125. There, the Attorney General observed:
KRS 61.878(1)(h) and (i) have been interpreted to authorize the nondisclosure of both interagency and intra-agency drafts and memoranda, and are designed to encourage frank discussion of matters of concern to the public agency or agencies.
This rationale "is equally compelling regardless of whether the communications are within an agency or between agencies." Id. Thus, a preliminary draft "does not lose that character by having been submitted for review and comments of a state agency." OAG 89-34, p. 2.
In OAG 88-24, the Attorney General affirmed the City of Owensboro's denial of an open records request for a draft audit of the Owensboro Sewer Commission which was conducted by the Environmental Protection Agency, characterizing the audit as "a preliminary document containing opinions and observations." OAG 88-24, p. 5. We applied the same legal theory in OAG 88-60, affirming the Natural Resources and Environmental Protection Cabinet's denial of a request for a remedial investigation/feasibility study of the Maxey Flats Superfund site, which was then only in draft form, on the basis of KRS 61.878(1)(i) and (j). One year later, we affirmed this principle, holding that an Environmental Protection Agency draft report, transmitted to Kentucky's Division of Air Quality for written comments and discussion, was exempt from public inspection as "a preliminary draft within the meaning of KRS 61.878(1)[(i)]." OAG 89-34, p. 2.
In 1993, we revisited the issue declaring that the Transit Authority of River City properly withheld a draft report prepared by Coopers & Lybrand for TARC, and related to a billing dispute between TARC and Yellow Enterprises, pursuant to KRS 61.878(1)(i) and (j). The disputed record bore a stamped notation designating it a "Draft for Discussion Purposes Only - Subject to Revision," and contained numerous disclaimers relative to its finality. At page 8 of 93-ORD-125, we noted that the report:
is subject to revision and discussion. Although the notation which appears on the document designating it a "Draft" is not dispositive, we believe that the document's contents reflect its preliminary character.
Finally, in 94-ORD-38 we held that a draft report prepared by the Justice Cabinet, but never issued, could properly be withheld under KRS 61.878(1)(i) and (j). In our view, this line of authority affirming the nondisclosure or draft reports prepared by outside agencies is dispositive of the present appeal.
The document at issue in this appeal is subject to revision and comment. It too contains a notice of restricted use from the U. S. Department of Housing and Urban Development, identifying the document as "a draft of a proposed audit report (finding) of HUD's Office of Inspector General" which "does not necessarily contain final conclusions," and limiting access to it in the following language:
Recipients of this draft must not show or release its contents for any purpose other than review and comment. They must safeguard it to prevent premature publication or otherwise improper disclosure of the statements or information it contains. Reproduction of this draft without consent of the Office of Inspector General is prohibited.
Inasmuch as the draft report falls squarely within the parameters of KRS 61.878(1)(i) and (j), we find that this language is consistent with the Open Records Act and must be honored. 1
This reasoning can be extended to the city's comments on the HUD draft report. Pending final action by the federal agency, these comments reflect opinions and recommendations the premature disclosure of which would inhibit frank discussion between the agencies. Thus, the rationale underlying the exemptions codified at KRS 61.878(1)(i) and (j) is equally well-served by nondisclosure of these records. We find no error in the City of Covington's denial of this portion of the Mr. Driehaus's request.
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.
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