Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Louisville Metro Government did not violate the Open Records Act in withholding e-mails and portions of e-mails pursuant to KRS 61.878(1)(j) that constituted opinions or recommendations that had not been adopted as basis of final action, but partially violated the Act by improperly redacting one paragraph in two identical e-mails that did not meet the requirements for exemption from disclosure under KRS 61.878(1)(j) and by improperly redacting one sentence in another e-mail if that sentence represented part of a discussion adopted as the basis of final action.
Open Records Decision
The question presented in this appeal is whether Louisville Metro Government ("LMG") violated the Open Records Act in its denial of Courier-Journal reporter Darcy Costello's May 14, 2019, request for "[a]ny correspondence among mayor's office and Louisville Metro Police staff regarding the police policy around traffic stops, including but not limited to discussions about the Aug. 9 stop of Tae-Ahn Lea." For the reasons that follow, we find a partial violation of the Act.
On May 17, 2019, LMG responded by producing some records, but indicated that five of the responsive records were "preliminary as the exchange of ideas and formulating policy so they are exempt from disclosure under KRS 61.878(1)(i) and (j)." On May 20, 2019, Ms. Costello requested further explanation of this partial denial in light of the fact that "a revised traffic stop policy has been finalized and made public." In reply, LMG stated on June 19, 2019: "Four of the documents are exempt under KRS 61.878(1)(j) as they are an exchange of opinions about a published article on public health and law enforcement that did not have anything to do with the traffic stop of Tae-Ahn Lea but did address current traffic policy. None of the discussion was made part of the new LMPD policy."
This office received Ms. Costello's appeal on June 24, 2019. In response to the appeal, LMG clarified that the number of records withheld pursuant to KRS 61.878(1)(j) was neither four nor five, but six. Two of these records, however, were duplicates of other withheld e-mails, saved by LMG's server in draft form. Therefore, only four unique records are at issue. Of those four records, LMG has since provided two to Ms. Costello in redacted form. Furthermore, one of those two records is identical to the other except for an unredacted forwarding message. Thus, only three e-mails of unique content are in controversy.
KRS 61.878(1)(j) creates an exception to the Open Records Act for "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." The purpose of this exception is "[t]o preserve the integrity of a public agency's internal decision making process by promoting full and frank discussion between and among public employees and officials and by equipping them with the tools needed in hammering out official action." 14-ORD-014.
In
University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) or (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.
It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal & Louisville Times Co. , 637 S.W.2d 658, 660 (Ky. App. 1982)). "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary ... records, to avoid a narrow, legalistic interpretation." 01-ORD-83. Nevertheless, KRS 61.878(1)(j) prevails, even after final agency action, as to "pre-decisional records not adopted in that official action." 14-ORD-014 (emphasis added).
In its response to the appeal, LMG declared that the "final agency action" in this matter was "issuing training bulletins to its officers regarding traffic stop training." Accordingly, any records adopted as the basis of that final action would lose their preliminary character.
On July 18, 2019, LMG submitted a supplemental response describing the disputed e-mails more fully. The first two e-mails are "withheld as they contain an article to prompt discussion about moving forward in crime reduction as well as communications regarding how/if/when to move forward with a particular study being conducted by a third party." LMG indicated that "none of these discussions or topics were used to create the new LMPD traffic stop policy," nor have "any final decisions ... been made on these topics of discussion."
The third and fourth e-mails, the redacted contents of which are identical, "contain the mental impressions of various issues in which no final action has been taken and suggestions for planning how to move forward on other issues." Those two e-mails also include an attachment consisting of "an article with highlights made by [Police] Chief Conrad," which LMG has also withheld as preliminary because "it illustrates his mental impressions in which no final action has been taken."
We have inspected these records in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Based on our review and LMG's representations, the first e-mail, sent at 4:52 P.M. on April 7, 2019, was properly deemed preliminary discussion. The second e-mail, sent at 5:01 P.M. on April 7, 2019, consists of two sentences, the second of which is preliminary for the reasons stated by LMG. The first sentence, however, possibly relates to the issuance of training bulletins that constituted final agency action. If that sentence was a part of a discussion which led to that action, that portion of the e-mail is no longer preliminary and should be disclosed.
The redacted portion of the third and fourth e-mails, sent at 5:40 and 5:57 P.M., respectively, on April 7, 2019, consists of three paragraphs that are similarly heterogeneous. While the first and third paragraphs, as well as the attachment, contain "mental impressions," opinions, and recommendations regarding prospective policy matters, as described by LMG, the second paragraph consists of a factual statement regarding an action that the sender has already taken. See 19-ORD-146 (factual statements are not opinions or recommendations). Furthermore, it appears that the paragraph is responsive to Ms. Costello's request and that the matters asserted are already public knowledge. Therefore, the second redacted paragraph is not exempt under KRS 61.878(1)(j) and should be disclosed.
Accordingly, we find that LMG properly withheld opinions and recommendations not adopted as the basis of final action pursuant to KRS 61.878(1)(j), which did not violate the Open Records Act. LMG improperly redacted the second paragraph in the third and fourth e-mails in reliance on KRS 61.878(1)(j), and improperly withheld the first sentence of the second e-mail if it represented part of a discussion adopted as the basis of the decision to issue training bulletins.
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.