Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Trigg County Hospital ("TCH") violated the Open Records Act in its disposition of Andrew Tucker's February 19, 2019, request for a copy of "the assessment/report prepared by Rural Hospital [ sic ] Group in 2018 for Trigg County Hospital." For the reasons that follow, we find no violation of the Act.
In a timely written denial of Mr. Tucker's request, TCH invoked KRS 61.878(i) and (j), stating, "This document is a draft consultative report. . . . Currently, our Board of Trustees has not acted to accept or refuse any or all portions of the consultative report submitted by the Rural Healthcare Group." TCH indicated that the document might be made available after review, "dependent upon the Board's adoption of the report." This office received Mr. Tucker's appeal on February 28, 2019.
On March 8, 2019, attorney Anna Stewart Whites responded to this appeal on behalf of TCH, stating that "[t]here is no document by the title given by" Mr. Tucker, but only a "draft and non-final document" consisting of an "initial review of possible new directions for the hospital and some draft notes" prepared by the Rural Healthcare Group. She further asserted that the draft document "has not been edited for accuracy or correctness and some information in the draft notes is hypothetical, incorrect or inapplicable." Furthermore, "[t]his draft and non-final document is not complete and has not been edited, amended or accepted by the Board for final preparation, use or dissemination." Invoking KRS 61.878(1)(l), Ms. Whites argued that "[t]he draft notes were guided by, amended by and reviewed by counsel and under oversight of counsel, thereby rendering the document attorney client privileged."
KRS 61.878(1)(i) and (j), respectively, 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; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
Based on TCH's representations, it appears that the record in question, a third party's review accompanied by notes, is in draft form and not a finalized document. TCH has neither approved nor adopted the review or the notes.
In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
Since TCH has taken no final action, such as approving or adopting the draft document or notes, the record in its present form remains preliminary under KRS 61.878(1)(i) and (j). As the preliminary nature of the record is dispositive, we need not address TCH's argument on appeal regarding attorney-client privilege. 15-ORD-066. Accordingly, we find no violation of 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.