23-ORD-015
January 30, 2023
In re: Melissa Thornsberry/Office of Attorney General
Summary: The Office of Attorney General (“the Office”) did not violate
the Open Records Act (“the Act”) when its response to a request to
inspect records complied with KRS 61.880(1).
Open Records Decision
On behalf of a client her law firm represents, Melissa Thornsberry (“the
Appellant”) submitted a request to the Office to inspect “any and all records” related
to a former resident of a specific long-term care facility. In a timely response, the
Office stated it possessed:
(1) a 2 page copy of KSP CAD report concerning [the former resident’s]
injuries and death; (2) a [1] page preliminary un-signed diagnosis report
for [the former resident] and an email from the Fayette County Coroner
office forwarding a copy of the same to our Office; (3) [1] page Office
summary regarding the complaint received about [the former resident’s]
death; (4) 2 email records reflecting communications between the Office
and the KSP concerning [the former resident’s] death; (5) 1 email
forwarding a voicemail message recording from a private citizen who
may have information concerning [the former resident’s] death; and (6)
2 internal Office emails among Office staff concerning the complaint
received concerning [the former resident’s] death and the preliminary
diagnosis report from the Fayette County Coroner’s Office.
The Office further stated inspection of all these records would be denied because the
records were “part of investigative files that are preliminary under KRS 61.878(1)(i)
and (j) until such time as the Office takes final agency action, if any.”The Office explained the records “contain only unsubstantiated allegations and
the Office has not made a determination on how to proceed.” Citing precedent from
Kentucky’s appellate courts, the Office explained the Act “exempts any such records
or information compiled in the process of investigating these alleged violations until
after the investigation is completed.” See Ky. Bd. of Examiners of Psychologists v.
Courier–Journal & Louisville Times Co., 826 S.W.2d 324, 326–27 (Ky. 1992); Ky.
State Bd. of Med. Licensure v. Courier–Journal & Louisville Times Co., 663 S.W.2d
953, 956 (Ky. App. 1983).1 The Appellant then initiated this appeal, claiming the
Office’s response was inadequate under KRS 61.880(1), and that all responsive
records should be made available for inspection.
If an agency denies a request to inspect records, its written response must
“include a statement of the specific exception authorizing the withholding of the
record and a brief explanation of how the exception applies to the record withheld.”
KRS 61.880(1). Although KRS 61.880(1) requires the explanation in support of denial
to be “brief,” the response cannot be “limited and perfunctory.” Edmondson v. Alig,
926 S.W.2d 856, 858 (Ky. App. 1996). In Edmondson, the agency’s response to a
request
stated
only
that
“the
information
you
seek
is
exempt
under KRS 61.878(1)(a)(k)(l) [sic].” Id. The agency failed to explain how any of the
three exemptions applied to the records withheld, and for that reason, the court held,
it violated KRS 61.880(1). Id.
Kentucky courts have refined the level of detail a “brief explanation” in support
of a denial KRS 61.880(1) requires. As stated by the Supreme Court of Kentucky, an
agency is not “obliged in all cases to justify non-disclosure on a line-by-line or
document-by-document basis.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d
842, 851 (Ky. 2013). Nevertheless, the Office did specify each document it possessed,
and explained that KRS 61.878(1)(i) and (j) applied to exempt each of those
documents from inspection. Accordingly, the Office’s response complied with
KRS 61.880(1) when it identified and described responsive records, specified an
exemption that applied to withhold them, and explained how that exemption applies.
After the appeal was initiated, the Office provided the Appellant with a copy
of the CAD Report and the one-page summary regarding the complaint. However,
relying on KRS 209.140(1), which is an exemption incorporated into the Act under
KRS 61.878(1)(l), the Office redacted from those records the name of an informant.2
1
In the alternative, the Office denied inspection under both law enforcement exceptions,
KRS 61.878(1)(h) and KRS 17.150(2). However, because the records in issue are exempt under
KRS 61.878(1)(i) and (j), it is unnecessary to examine the Office’s alternative grounds for denial.
2
Because the Office no longer relies on KRS 61.878(1)(i) and (j) to withhold these records, it is
unnecessary to determine whether those exceptions apply to these records.KRS 209.140 makes confidential “[a]ll information obtained by the department staff
or its delegated representative, as a result of an investigation made pursuant to”
KRS Chapter 209. However, “[p]ersons suspected of abuse or neglect or exploitation”
may have access to the information, “provided that in such cases names of informants
may be withheld, unless ordered by the court.” KRS 209.140(1).
The Appellant’s law firm is defense counsel for a long-term care facility
involved in a civil action related to the death of the former resident. As such, her firm
is an agent of an entity that may receive access to the information made confidential
under KRS 209.140. Consistent with the statute, the Office redacted only the name
of an informant, until otherwise ordered by a court to provide it. See KRS 209.140(1).
As for the remaining records, the Office properly relied on KRS 61.878(1)(i) and
(j) to withhold them. “Preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give notice of final action
of a public agency” may be exempt from inspection under KRS 61.878(1)(i). And
“[p]reliminary recommendations, and preliminary memoranda in which opinions are
expressed or policies formulated or recommended” may be exempt from inspection
under KRS 61.878(1)(j). Kentucky courts have held that public records that are
adopted as part of a public agency’s final action may lose their preliminary status and
become subject to inspection. See Univ. of Ky. v. Courier–Journal & Louisville Times
Co., 830 S.W.2d 373, 378 (Ky. 1992). Drafts, notes, and preliminary recommendations
that are part of an investigation may be exempt from disclosure until the public
agency has taken final action concerning the investigation. City of Louisville v.
Courier–Journal & Louisville Times Co., 637 S.W.2d 658, 660 (Ky. App. 1982); see
also 21-ORD-088 (investigative files related to inmate grievances remained
preliminary until final action on the grievances occurred).
On appeal, the Office further explained how each of the remaining records are
exempt under KRS 61.878(1)(i) and (j). The Office withheld a “diagnosis report,”
marked with the descriptor “preliminary,” which contains preliminary opinions
concerning the former resident’s “cause and manner of death.” The Office further
explained that “the report is an unsigned draft,” which is also exempt under
KRS 61.878(1)(i). Because the opinion regarding the cause of death remains
preliminary and remains an unsigned draft, this record is exempt under both KRS
61.878(1)(i) and (j). The Office therefore did not violate the Act by withholding this
record.The Office withheld a voicemail message under KRS 61.878(1)(i) “because it is
correspondence from a private individual in no way related to giving notice of final
agency action.” KRS 61.878(1)(i) not only exempts from inspection drafts and notes,
but also “correspondence with private individuals, other than correspondence which
is intended to give notice of final action of a public agency.” The voicemail message
constitutes correspondence with a private individual, and final action has not been
taken with respect to the investigation. The Office therefore did not violate the Act
by withholding this record under KRS 61.878(1)(i).
Finally, the Office withheld emails containing preliminary discussions
between Office employees and Kentucky State Police troopers about the
investigation. Because the emails contain preliminary discussions regarding opinions
of an investigation in which final action has not yet occurred, the Office did not violate
the Act by withholding these records under KRS 61.878(1)(j).
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#419
Distributed to:
Bridget A. Coraz
Melissa Thornsberry
Jeremy Sylvester