23-ORD-296
November 6, 2023
In re: Peter Cummins/Daviess County Fiscal Court
Summary: The Daviess County Fiscal Court (the “Fiscal Court”)
violated the Open Records Act (“the Act”) when it denied a request to
inspect records without explaining how the claimed exceptions applied
to the records withheld. The Fiscal Court also violated the Act when it
failed to separate exempt information from nonexempt information and
provide the latter for inspection. However, the Fiscal Court did not
violate the Act when it withheld several emails under KRS 61.878(1)(i)
and (j).
Open Records Decision
Peter Cummins (“Appellant”) submitted a request to the Fiscal Court for a
variety of records related to plans for a building located in Owensboro.1 In a timely
response, the Fiscal Court denied the request under KRS 61.878(1)(i) and (j) because
“the matter [the Appellant] request[ed] information about has had no final action—
and the records [he] request[ed] are preliminary drafts, notes, and/or correspondence
with private individuals.” The Fiscal Court also cited University of Louisville v.
Sharp, 416 S.W.3d 313 (Ky. App. 2013), for the proposition that “preliminary records
1
Specifically, the Appellant sought “[a]ny and all documents and communications, from January
2022 to present, including but not limited to internal and external emails and memoranda; text
messages on devices whose data plans are reimbursed by the County; calendar entries for meetings or
phone calls; and any other communication and/or record of communication, relating or referring to”
four private companies; the “Towne Square Mall” building; the “[a]mendment, repeal, or revisions to
the City of Owensboro ordinance regarding use of smoke and/or smokeless tobacco products”; and “[d]e-
annexation of the parcel leased to” one of the previously mentioned private companies “located at 5000
Frederica Street.” He also sought “any and all communications” with two of the private companies
regarding any real property in Daviess County “and revisions to any City of Owensboro ordinance.”relating to correspondence with private individuals, without final agency action, are
not subject to open records.” This appeal followed.
Upon receiving a request to inspect public records, a public agency must
determine within five business days whether to grant the request or deny it.
KRS 61.880(1). If the agency chooses to deny the request, it “shall 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.” Id. An agency
response denying a request for records must explain the denial by “provid[ing]
particular and detailed information,” not merely a “limited and perfunctory
response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The agency’s
explanation must be detailed enough to permit [a reviewing] court to assess its claim
and the opposing party to challenge it.” Ky. New Era, Inc. v. City of Hopkinsville, 415
S.W.3d 76, 81 (Ky. 2013). In the event a request implicates a great many records, an
agency discharges its duty under KRS 61.880(1) by assigning the withheld records to
meaningful categories, describing the nature of the documents in each category, and
explaining how the claimed exception applies to the documents in each category. See,
e.g., 22-ORD-007 (agency violated the Act when it merely stated the withheld records
were exempt under KRS 61.878(1)(i) and (j) because they had never been adopted as
part of final agency action without describing the records withheld or the potential
final action that was being contemplated).
Here, the Fiscal Court merely paraphrased the text of KRS 61.878(1)(i) and (j)
and stated no final action had occurred in connection to responsive records. It did not
describe the type of records it was withholding (e.g., emails, letters, text messages, or
reports), the general content of those records, or how the cited exceptions applied to
the records it withheld. Accordingly, the Fiscal Court’s limited and perfunctory
response violated the Act.
On appeal, the Fiscal Court has agreed to provide records responsive to all
portions of the Appellant’s request except for emails involving two of the four private
companies.2 With respect to the emails it continues to withhold, the Fiscal Court
reiterates that KRS 61.878(1)(i) and (j) apply because they contain “preliminary
discussions” with two private companies and no final action has been taken with
respect to potential plans for those companies to locate in Owensboro.
2
While the appeal was pending, the parties agreed to “suspend” the Fiscal Court’s production of
records while settlement talks involving one of the private companies continued. However, those
negotiations apparently broke down, and the Appellant now seeks those records. It is not clear whether
those records have in fact been provided to the Appellant as of the date of this decision.KRS 61.878(1)(j) exempts from inspection “[p]reliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.” This exception is distinct from KRS 61.878(1)(i), which exempts
from inspection “[p]reliminary drafts, notes, correspondence with private individuals,
other than correspondence which is intended to give notice of final action of a public
agency.” The distinction is important because Kentucky courts have held
“investigative materials that were once preliminary in nature lose their exempt
status once they are adopted by the agency as part of its action.” Univ. of Ky. v.
Courier–Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). But neither
KRS 61.878(1)(i) nor (j) discusses preliminary “investigative materials.” Rather,
KRS 61.878(1)(i) relates to preliminary drafts and notes, which by their very nature
are rejected when a final report is approved. In other words, a first draft is not
“adopted” when a second draft is written, and the first draft is always exempt under
KRS 61.878(1)(i). See, e.g., 21-ORD-089 (agency properly relied on KRS 61.878(1)(i)
to deny inspection of the “first draft” of a report that was later adopted).
The same is true of “notes,” which constitute most interoffice emails and chat
messages. See, e.g., 22-ORD-176 n.6; OAG 78-626. To the extent specific thoughts or
beliefs contained within drafts and notes are “adopted,” they are adopted into
whatever final document the agency produces from those drafts and notes. That final
document represents the agency’s official action and is subject to inspection. But the
initial and preliminary thoughts on what the final product should contain, which are
expressed during the drafting process through emails, do not lose their preliminary
status once the final end-product is produced. To do so would destroy the “full and
frank discussion[s] between and among public employees and officials” as they
“hammer[ ] out official action,” which is the very purpose of KRS 61.878(1)(i). 14-
ORD-014.
To determine whether the Fiscal Court properly invoked the claimed
exemptions, the Office asked the Fiscal Court to provide copies of the withheld
records. See KRS 61.880(2)(c). The Fiscal Court provided 156 emails, some with
attachments, and two other records containing lists of projects for this Office’s
confidential review.3 Of course, the Office cannot disclose the contents of these
records. Id. But having reviewed the records, it is clear that, except for portions of the
two lists, all the records are exempt under KRS 61.878(1)(i) and (j).
3
The Fiscal Court did not indicate which exception applied to specific records nor did it explain why
the records were exempt.Most of the emails provided to the Office are exempt under KRS 61.878(1)(i) as
“correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency.” In total, 78 of the 156 records
provided are exempt under this exception. The emails take the form of either
correspondence with private entities about the specific subject matter of the
Appellant’s request or correspondence with entities inquiring about the Fiscal Court’s
handling of the subject matter of the Appellant’s request. None of the emails contain
notice of final action contemplated by the Fiscal Court. As such, the emails are
exempt under KRS 61.878(1)(i).
Fifty-four of the 156 emails are notes under KRS 61.878(1)(i). This category of
emails involves internal communications among Fiscal Court employees discussing
the contents of emails with private individuals, emails proposing responses to private
individuals, emails suggesting what position the Fiscal Court should take in response
to correspondence from private individuals, and emails containing the mental
impressions of Fiscal Court employees about negotiations with private individuals.
Most of the records at issue are from a single email chain that was saved as a
separate record each time a Fiscal Court employee or private individual replied. As
such, these emails all contain the same attachments. These attachments include
original and redline versions of documents, and therefore, are preliminary drafts.
Thus, the emails among Fiscal Court employees commenting on the attachments are
notes, and the emails exchanged between the private companies and Fiscal Court
employees constitute preliminary correspondence with private individuals not
intended to give notice of final action. The attachments to the emails are all drafts of
the documents about which no final action had been taken. As such, all these records
are exempt under KRS 61.878(1)(i).
The last broad category of exempt emails involves the scheduling of meetings.
The Court of Appeals has held that emails related to meetings and calendar
invitations and entries are preliminary drafts and notes exempt from inspection
under KRS 61.878(1)(i). See Courier-Journal v. Jones, 895 S.W.2d 6, 10 (Ky. App.
1995). Of the 156 records provided to the Office, 22 involve scheduling meetings,
including calendar invitations, and are therefore exempt under KRS 61.878(1)(i).
The final two records the Fiscal Court provided to the Office are not emails,
but rather, are two documents containing lists of projects that have either been
proposed or have been initiated in 2023. The Fiscal Court has not explained why
either of these lists is exempt under KRS 61.878(1)(i) or (j), other than its generalassertion that all records are exempt because the Fiscal Court has not taken final
action. The projects that have merely been proposed, but have not yet been approved,
are “preliminary recommendations” and could be redacted from the list under
KRS 61.878(1)(j). See KRS 61.878(4) (requiring an agency to separate exempt
information from nonexempt information and providing the latter for inspection).
However, it is not clear from these documents which projects have been approved,
and which (if any) remain as preliminary recommendations. As such, the Fiscal Court
violated the Act when it failed to separate the projects that had been approved, which
should be provided to the Appellant, from the projects that remain as preliminary
recommendations contemplated by the Fiscal Court and can be withheld.
In sum, the Fiscal Court violated the Act when it responded to the Appellant’s
request with a limited and perfunctory response that merely paraphrased
KRS 61.878(1)(i) and (j) without explaining how the exceptions applied to each
category of the records withheld. The Fiscal Court also violated the Act when it
withheld entirely two lists that appear to contain projects that had already been
approved, instead of separating those projects from the future projects that are still
only preliminary recommendations being contemplated by the Fiscal Court. However,
the remaining records are emails that are exempt from inspection under
KRS 61.878(1)(i) because they contain drafts of documents, notes discussing potential
responses to emails and edits to the drafts, and correspondence with private
individuals that were not intended to give notice of final action by the Fiscal Court.
A party aggrieved by this decision may appeal it by initiating an 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#375Distributed to:
Peter M. Cummins
Charlie Castlen
John C. Burlew