Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General's Consumer Protection Division (CP) violated the Open Records Act in responding to the open records request submitted by Michael Warren for "a copy of the investigation done by Clarissa." For the reasons that follow, we conclude that the Division's denial was proper and consistent with the Act and prior decisions of the courts and this office.
By letter dated September 9, 2002, Todd E. Leatherman, Director, (CP), responding on behalf of the agency, advised:
This is the Consumer Protection Division's response to your request received August 22, 2002 by this Division. Unfortunately, the only records which this agency has at this time "on the investigation done by Clarissa" are exempted from inspection pursuant to KRS 61.878(1)(j) as they are preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. There is no written document at this time reflecting the final decision of this agency.
As a result of the denial of his request, Mr. Warren initiated the instant appeal.
After receipt of Notification of the appeal and a copy of the letter of appeal, Mr. Leatherman provided this office with a response to the issue raised in the appeal. In his response, Mr. Leatherman stated "the agency maintains the records requested by Mr. Warren are exempt from disclosure for the reasons outlined in the September 9 letter," and further explained:
To assist you in evaluating the basis for claiming the exemption, the following information is provided. Clarissa was a summer intern employed by the Consumer Protection Division to assist the Division's Mediation Branch which attempts to assist consumers in resolving various consumer-related complaints. Under my direction, [she] made certain inquiries concerning an oral complaint she received from Mr. Warren over the telephone. The records in question amount to a preliminary briefing of her director on information she obtained from various sources and preliminary impressions she developed from those discussions. After we discussed her efforts, I determined that the matter was not within the jurisdiction of the consumer protection division and that Clarissa should so advise Mr. Warren and suggest that if he was not satisfied that he could contact a private attorney.
This decision was communicated orally to Clarissa and no document exists reflecting the Division's decision to refer Mr. Warren to his private remedies.
Because the intern's efforts are investigative and preliminary in nature, it is submitted that the decision reflected in the agency's September 9, 2002 letter to Mr. Warren is consistent with the exemption found in KRS 61.878(1)(i) and (j) consistent with the decision in City of Louisville v. Courier-Journal & Louisville Times, Ky.App., 637 S.W.2d 658 (1982).
We are asked to determine whether the agency's denial of the request constituted a violation of the Open Records Act. For the reasons that follow, we conclude the denial was proper and consistent with the Act and prior decisions of the courts and this office.
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)] protect preliminary documents from public disclosure if they are not adopted as the basis of final agency action. This is the seminal decision on the preliminary documents exceptions.
In addition, this office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 98-ORD-27. In 94-ORD-135, we stated:
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. OAG 86-34; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97; 93-ORD-26. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
In his response, Mr. Leatherman explained that the records in question amount to a preliminary briefing by the Division's summer intern on information she obtained from various sources and preliminary impressions she developed from those discussions. Mr. Leatherman further explained that the records were preliminary in nature, in that they constituted a summarization of certain inquiries concerning the oral complaint she received from Mr. Warren over the telephone. The agency determined that Mr. Warren's complaint was not within CP's jurisdiction, thus the agency's final action was to take no action on the matter and to suggest to Mr. Warren that he seek advice from private counsel.
Records in investigative files remain preliminary unless they are adopted as part of final agency action. Since there was no document reflecting final agency action, the investigative files remain preliminary in nature and are exempt from disclosure, under KRS 61.878(1)(i) and (j). 99-ORD-55. Accordingly, we conclude that the Consumer Protection Division could properly withhold disclosure of the requested records under authority of KRS 61.878(1)(i) and (j).
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.
Michael WarrenP.O. Box 120Summersville, KY 42782
Todd Leatherman, DirectorConsumer Protection Division1024 Capital Center DriveFrankfort, KY 40601