23-ORD-207
August 9, 2023
In re: Ashley Gruner/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) did not violate the
Open Records Act (“the Act”) when it withheld a “preliminary draft”
under KRS 61.878(1)(i).
Open Records Decision
On May 11, 2023, Ashley Gruner (“Appellant”) requested “a copy of the
compensation study that was conducted for all of Metro Government and recently
completed.” Metro denied the request under KRS 61.878(1)(i) and (j) “because the
document
deals
with
preliminary
drafts
and
notes,
and
preliminary
recommendations in which opinions are expressed or policies formulated or
recommended and which do not form the basis of final agency action.” On June 28,
2023, the Appellant again requested “a copy of the recently completed compensation
study.” Metro denied the renewed request on the grounds that “there are no
responsive records.” This appeal followed.
On appeal, Metro states the compensation study is still “in a preliminary draft
form” and thus no final or “completed” version exists because Metro “has yet to receive
the final version from the consulting group that is compiling the results of the study.”
Metro also asserts the draft document contains “preliminary recommendations in
which opinions are expressed or policies are formulated and/or recommended, and no
final agency action has been taken.” KRS 61.878(1)(i) exempts from disclosure
“[p]reliminary drafts, notes, [and] correspondence with private individuals, other
than correspondence which is intended to give notice of final action of a public
agency.” A preliminary draft is “a tentative version, sketch, or outline” of a final
document. 05-ORD-179. It does not lose its preliminary status when the agency takes
final action. See 21-ORD-089. Because the final version of the document would no
longer be exempt under KRS 61.878(1)(i) or (j) once it has been approved, theAppellant is not entitled to obtain a copy of a preliminary draft of that document,
either now or after the final document is approved.
The Appellant, however, claims a finalized version of the compensation study
exists and should have been provided to her. Once a public agency states affirmatively
that a record does not exist, the burden shifts to the requester to present a prima
facie case that the requested record does exist. See Bowling v. Lexington–Fayette Urb.
Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). A requester’s bare assertion that an
agency must possess requested records is insufficient to establish a prima facie case
that the agency actually possesses such records. See, e.g., 22-ORD-040. Rather, to
present a prima facie case that the agency possesses or should possess the requested
records, the requester must provide some statute, regulation, or factual support for
that contention. See, e.g., 21-ORD-177; 11-ORD-074. Here, the Appellant claims a
final version of the compensation study must exist because she possesses a copy of an
email from the Louisville Metro Police Human Resources Director to commanding
officers and civilian supervisors dated June 27, 2023, which states that an “overview
of [the] study is supposed to be posted on-line sometime next week.” However, one
person’s mere expectation that an “overview” of the document “is supposed to be
posted” in the near future does not establish a prima facie case that a finalized version
of the document already exists. Therefore, Metro did not violate the Act when it
denied the Appellant’s request for a record that exists only in preliminary draft form.1
A party aggrieved by this decision may appeal it by initiating an 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#307
Distributed to:
1
Because KRS 61.878(1)(i) is dispositive as to the exempt nature of the draft compensation study,
it is unnecessary to address Metro’s argument under KRS 61.878(1)(j).Ms. Ashley Gruner
Nicole H. Pang, Esq.
Alice Lyon, Esq.
Annale R. Taylor, Esq.
Natalie S. Johnson, Esq.