23-ORD-054
March 13, 2023
In re: Barbara Walden/City of Lexington
Summary: The City of Lexington (“the City”) did not violate the Open
Records Act (“the Act”) when it withheld its Consent Decree Schedule
Modification Request that was exempt from disclosure under
KRS 61.878(1)(j).
Open Records Decision
Barbara Walden (“Appellant”) submitted a request to the City for the
“Schedule Modification Request of August 19, 2022 referenced in . . . the 2022 Annual
Consent Decree Report.” The City denied her request, stating that the Consent
Decree Schedule Modification Request is exempt under KRS 61.878(1)(j) as a
preliminary record because the policies it recommends “have not been approved,
agreed upon, or finalized” by the parties to the Consent Decree and is exempt under
KRS 61.878(1)(k), KRE 408, and FRE 408 because the record contains settlement
negotiations and offers. This appeal followed.
KRS 61.878(1)(j) exempts from disclosure “[p]reliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.” The City asserts the Consent Decree Schedule Modification
Request contains recommendations, policies, and opinions that “have not yet been
adopted by the . . . U.S. District Court and the other Parties to the Consent Decree.”
More specifically, the City claims the deadlines in the Consent Decree Schedule
Modification Request are “likely not the final” deadlines and “more discussion is
needed between the Parties and with the U.S. District Court before . . . a final order
is entered by the Court.” As such, it claims the Consent Decree Schedule Modification
Request is a preliminary record, exempt under KRS 61.878(1)(j), until the parties
reach an agreement and a final order is entered by the Court. This Office agrees thata record containing preliminary opinions and recommendations may be withheld
while its contents are being negotiated and remain subject to change. See, e.g., 19-
ORD-008; 97-ORD-062; OAG 87-21; OAG 79-326. However, once a record is adopted
as part of a public agency’s final action, it loses its preliminary status and is subject
to inspection, unless another exemption applies. See Univ. of Ky. v. Courier-Journal
& Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). Because the City has not yet
adopted the recommendations in the draft and taken final action in filing the Consent
Decree Schedule Modification Request with the court, it remains a preliminary record
at this time.1 Accordingly, the City did not violate the Act when it withheld this
record.2
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#063
Distributed to:
Barbara Walden
Jason Hernandez
Evan P. Thompson
1
As noted in the University of Kentucky case, the act of submitting the record to a third party, here
a federal district court, constitutes “final action” and the agency’s adoption of the recommended terms.
830 S.W.2d at 378. Although the Consent Decree Schedule Modification Request may not have legal
effect until entered by the federal district court, the record does not retain its preliminary status under
KRS 61.878(1)(j) while the parties wait for the court’s approval.
2
Because KRS 61.878(1)(j) is dispositive of the issues on appeal, it is not necessary to address the
City’s arguments that the record is also exempt under KRS 61.878(1)(k), KRE 408, and FRE 408.