Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Government violated the Open Records Act in its partial denial of the open records request of Mark Hebert of WHAS 11. For the reasons that follow, we conclude that the Metro Government properly relied upon KRS 61.878(1)(j) in denying Mr. Hebert's request for a copy of the October 19, 2004 Louisville Metro Police Department memorandum from Carl Sandler, Fleet Management, to Lt. Col. Steve Conrad, Administrative Bureau, re GSA -- Fleet Services.
By letter dated November 23, 2004, Mr. Hebert submitted a request to Chad Carlton in the Mayor's office, requesting to inspect the following:
All correspondence or memoranda from Carl Sandler (fleet management), to Lt. Col. Conrad, Ed Meece, the Mayor's office, Council Members or any other metro government officials involving the costs and prices of parts for the city vehicle fleet, Please include attachments and the responses to Mr. Sandler.
All 2004 bids or responses to RFPs received from parts suppliers for the contract to supply all parts to Metro Government's Maintenance garages.
By letter dated November 24, 2004, Paul V. Guagliardo, Assistant Jefferson County Attorney, responded to Mr. Hebert's request, advising:
I am advised that the memorandum from Carl Sandler to Lt. Col. Conrad dated October 19, 2004, is a preliminary, non-final inter-agency memo in which opinions and recommendations are expressed and the administration therefore invokes the exemption from disclosure contained in KRS 61.878(1)(i) and (j).
The administration has granted your request for "2004 bids and responses . . ." You should contact Craig Bowen at Purchasing to make arrangements to inspect and copy the records you are interested in. He can be contacted at (502) 574-6988.
For communications by and between members of the Metro Council you will need to contact its Clerk, Kathy Herron.
On November 30, 2004, Mr. Herbert initiated an appeal to this office challenging the denial of access to the October 19, 2004 memorandum from Carl Sandler to Lt. Col. Conrad. Disagreeing with the agency's denial, Mr. Hebert stated in part:
The memo from Mr. Sandler is, simply, correspondence to another government official. Once he wrote it, it was final. In Mr. Guagliardo's view, all government correspondence should remain preliminary and hidden from public view unless they are incorporated into a final report or some final decision. What leads to that decision is private and irrelevant to the public in Guagliardo's eyes. I disagree. If there are written discussions and opinions being expressed by government employees about tax dollars, fraud, waste, and operations, taxpayers have a right to know about it!
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Guagliardo provided this office with a response to the issues raised in the appeal. In the response, citing decisions of the courts and this office, Mr. Guagliardo argued that the withheld memorandum was "a classic example of a preliminary, internal memorandum containing opinions and recommendations, " which the courts and this office have held may properly be withheld from disclosure under authority of KRS 61.878(1)(i) and (j).
For the reasons that follow, we conclude that the memorandum could be withheld from disclosure under KRS 61.878(1)(j).
KRS 61.878(1) (j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
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)(j).
In explaining the intent and purpose of KRS 61.878(1)(j), this office in 04-ORD-196, p. 2-4, stated:
. . . This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendation. " 94-ORD-132, p. 3; OAG 90-97; OAG 89-39; OAG 88-85; OAG 88-24. The underlying purpose of the exception is analyzed at page 4 of OAG 88-85:
Fundamental to the cited decisions is the recognition that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act, " Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995), and that:
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-78.
In 00-ORD-89 the Attorney General was asked to review the City of Louisville's denial of a request for a memorandum prepared by the chief of police and directed to the deputy mayor concerning an internal review of an ancillary division. The City relied on KRS 61.878(1)(j), noting that the disputed document was "a preliminary, non-final, internal inter-office memorandum containing opinions and recommendations, " and we affirmed. Conversely, in 00-ORD-168 the Attorney General determined that the Purchase Area Development District improperly relied on KRS 61.878(1)(j) in resisting disclosure of a memorandum from the Department of Energy, containing post-employment opinions and advice, that was adopted by the Purchase Area Development District as the basis for a hiring decision. There, we held that the letter:
forfeited its preliminary characterization when it was adopted . . . as the basis in part of [the] decision to hire. . . . The courts and this office have long recognized that predecisional documents that are [adopted as the basis of] final agency action no longer enjoy the protection of KRS 61.878(1)(j) .
00-ORD-168, p. 4, citing City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992).
In 04-ORD-196, we also noted that critical to the court's analysis, in the cases cited therein, was "the presumption that the agencies resisting disclosure of the requested records were authorized to take final action in the matter to the records related.
Although the agency denied Mr. Hebert access to the memorandum, he nevertheless was able obtain a copy of it and enclosed a copy of it with his letter of appeal. Our review of the memorandum, which we describe in general terms, indicates that it is an internal memorandum from a subordinate to a superior, whom we presume had authority to take action on the matter, containing a frank discussion regarding the GSA -- Fleet Services and the utilization of both new and old operational processes in the operation and maintenance of the Mobile fleet of the Louisville Metro Police Department. It includes opinions expressed, and recommendations and criticisms made about agency practices. The agency in its denial of Mr. Hebert's request to inspect this document, advised him that the memorandum "is a preliminary, non-final inter-agency memo in which opinions and recommendations are expressed." Nothing in the record before us indicates that all or any part of the memorandum was adopted as the basis of any final action by the Metro Government. As such, the document maintains its preliminary character and could be properly withheld from disclosure under KRS 61.878(1)(j). Based on these facts, we conclude that the Metro Government's denial of the request to inspect this document did not violate the Open Records Act.
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 proceedings.