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 City of Paducah violated the Open Records Act in denying Barry Carter's November 14, 2005, request to inspect "[r]eports and or drafts regarding the Fire Reduction Task Force. " Because the City has not taken final action on the draft report at issue, it remains a preliminary document, and the City properly denied access to the record under authority of KRS 61.878(1)(i) and (j).
By letter dated November 18, 2005, James W. Zumwalt, City Manager, responded to Mr. Carter's request, providing him with ten categories of documents responsive to his request, but denied access to a draft report, advising:
In accord with KRS 61.878(1)(i), I have not included in the response to your request a draft report that has not yet been discussed by members of the Task Force nor distributed to the City Commission.
Shortly thereafter, Mr. Carter initiated the instant appeal, challenging the City's denial of access to the draft report.
After receipt of notification of the appeal and a copy of the letter of appeal, attorney Glenn D. Denton, on behalf of the City, provided this office with a response to the issues raised in the appeal. In his response, Mr. Denton explained, in relevant part:
The document which Mr. Carter seeks is a report by the Fire Reduction Task Force (hereinafter the "Task Force" ) that will go to the City Commission. This report addresses potential staffing changes within the fire department of the City of Paducah. The purpose of the task force is to study and make recommendation (s) to the City Commission as to whether any staffing changes are necessary within the fire department. The task force has no authority to cause any staffing changes within the fire department. Only the City Commission has authority to take final action on this issue.
At this time, the task force has been presented with documentation necessary to finalize its report, but the task force has not completed its final report for consideration by the City Commission. In fact, the Task Force has not yet met to discuss the final version of the report. The task force is still reviewing documentation provided by Mr. Zumwalt and could ultimately forego including documentation in its final report to the City Commission. In short sum, the report is still in draft form.
Mr. Carter erroneously asserts that because the documentation provided by Mr. Zumwalt to the task force it is an internal memorandum that it is subject to disclosure. The decisions analyzing the exceptions contained in KRS 61.878 consistently hold that internal memorandums are protected from disclosure until final action is taken by the public agency at issue.
In addition to being exempt from disclosure under KRS 61.878(1)(i), Mr. Denton argues that the documentation presented to the task force contains preliminary opinions as to whether or not staff reductions are necessary within the fire department and are exempt from disclosure as "preliminary recommendation and/or preliminary memoranda in which opinions are expressed or policies formulated or recommended" under KRS 61.878(1)(j). He concludes by stating "unless and until a final report by the task force is used by the City Commission as the basis for a final action regarding staff changes within the fire department, the task force's report and the documentation provided to the task force by Mr. Zumwalt is exempted from disclosure pursuant to KRS 61.878(1)(i) and (j)."
We are asked to determine whether the City's denial of access to the draft report violated the Open Records Act. For the reasons that follow, we conclude that the City's denial was proper and did not constitute a violation of the Act.
KRS 61.878(1)(i) and (j), authorize the nondisclosure of:
(i) 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.
The Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only after they are adopted by the agency as part of its final action. 00-ORD-139; City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992).
These open records decisions reflect the Attorney General's commitment to implement the intent of the General Assembly in carving out these exemptions. This office has frequently noted that KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency. See, e.g., 94-ORD-118 and 93-ORD-125.
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.
The City explained in its responses that the task force has been presented with documentation necessary to finalize its draft report, but has not yet completed its report for consideration by the City Commission. As such, these records retain their preliminary character until such time as they are adopted and made a part of final agency action. Accordingly, we conclude that, because no final action has yet been taken, the City properly denied access to the draft report on the basis of KRS 61.878(1)(i) and KRS 61.878(1)(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.
Barry Carter, PresidentPaducah Professional Fire FightersIAFF Local 168 P.O. Box 8Kevil, KY 42053
James W. ZumwaltCity ManagerP.O. Box 2267City of Paducah, KY 42002-2267
William F. Paxton, Mayor300 S. 5th StreetP.O. Box 2267City of Paducah, KY 42002-2267
Glenn D. DentonDenton & Keuler, LLPSuite 301, 555 Jefferson StreetP.O. Box 929Paducah, KY 42002-0929