24-ORD-016
January 22, 2024
In re: Mike Doyle/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) did not violate the
Open Records Act (“the Act”) when it withheld an email that was exempt
from disclosure under KRS 61.878(1)(j).
Open Records Decision
Mike Doyle (“Appellant”) submitted to Metro a request for records related to
the sale and purchase of a specific property. His request contained 13 subparts. The
Appellant originally appealed Metro’s delay in providing responsive records, which
resulted in this Office’s decision in 23-ORD-333. During the pendency of that appeal,
Metro issued its final response informing the Appellant that it is withholding “one
internal email discussing real estate prices” under KRS 61.878(1)(j). The Appellant
now appeals Metro’s decision to deny his access to this email.1
Among the types of records the Appellant requested were “any appraisals or
other basis for what the highest price to be paid or bid for the[ ] property by [M]etro
government or its agenc[ies].” In response, Metro informed the Appellant that it is
withholding “one internal email discussing real estate prices” under KRS 61.878(1)(j)
and stated that “preliminary information and work notes containing opinions,
observations, advice, and recommendations of personnel within agency are exempt
as preliminary, pre-decisional documents and retain their exempt status unless they
are adopted as final agency action.”
1
The Appellant previously attempted to insert Metro’s belated denial of this email into his first
appeal. However, the Office declined to consider the issue at that time, informing the Appellant that
he could initiate a new appeal by providing the Office with a copy of his original request and Metro’s
final response. See 23-ORD-333 n.1.KRS 61.878(1)(j) exempts from disclosure “[p]reliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.” Metro asserts that the internal email contains research about the
prices of property comparable to the property that would later go up for auction. The
email’s author then offered an “opinion on what might be a reasonable price range.”
The Appellant argues that Metro took final action in connection with the email when
it entered its bid on the property. 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). Here, however, Metro did not “adopt” the
recommendations in the email. Rather, it took final action when it authorized its
agent to enter a bid on the property. Metro has provided the Office and the Appellant
with the letter authorizing its agent to bid on the property and the authorization does
not limit the agent’s authority to the price range contained in the withheld email.
Because the email was not adopted as part of Metro’s final action, it did not lose its
preliminary status. Accordingly, Metro did not violate the Act when it withheld this
record.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#563
Distributed to:
Mike Doyle
Alice Lyon
Annale Taylor
Natalie S. Johnson
Nicole Pang