24-ORD-029
February 6, 2024
In re: Linzey Lewis/Morgan County Fiscal Court
Summary: The Morgan County Fiscal Court (“the Fiscal Court”) did
not violate the Open Records Act (“the Act”) when it denied inspection
of purchase order notebooks that were “preliminary drafts” or “notes”
under KRS 61.878(1)(i).
Open Records Decision
On January 4, 2024, Linzey Lewis (“Appellant”) requested to inspect “all
purchase order books dating from 2019 to the present.” In a timely response, the
Fiscal Court agreed to provide the “digital information . . . contained in the Orders on
the FiscalBooks Software System maintained by the [Fiscal Court] as its official
records in regard to purchase orders.” The Fiscal Court added that, to the extent the
Appellant sought “any other documents that are not contained in the actual
FiscalBooks Software System,” the request was denied under KRS 61.878(1)(i), “as
such are considered to be preliminary drafts and are not intended to give notice of
final action of a public agency, as only such final orders are demonstrated by Orders
contained in the FiscalBooks Software System.” This appeal followed.
On appeal, the Fiscal Court claims the “purchase order books” requested by
the Appellant are preliminary drafts or notes. 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. Notes are “created as an aid to memory or as a basis
for a fuller statement.” Id. Records of these types do not lose their preliminary status
when the agency takes final action. See 21-ORD-089.
Here, the Fiscal Court asserts the “[o]fficial records” of its purchase orders are
maintained in the software system known as FiscalBooks, whereas the only physical
“purchase order books” that exist are “notebooks where information pertaining to
purchase orders may have been written down prior to being entered intoFiscalBooks.” The Fiscal Court further states these notebooks are documents it is not
required to create or maintain,1 but “were merely used to assist in creating purchase
order and vendor claims registers in FiscalBooks, which are the final written products
pertaining to [the] purchase orders.”
As the Court of Appeals has said, “Not every paper in the office of a public
agency is a public record subject to public inspection. Many papers are simply work
papers which are exempted because they are preliminary drafts and notes. . . . Yellow
pads can be filled with outlines, notes, drafts and doodlings which are
unceremoniously thrown in the wastebasket or which may in certain cases be kept in
a desk drawer for future reference. Such preliminary drafts and notes and
preliminary memoranda are part of the tools which a public employee or officer uses
in hammering out official action within the function of his office. They are expressly
exempted by the Open Records Law and may be destroyed or kept at will and are not
subject to public inspection.” Courier-Journal v. Jones, 895 S.W.2d 6, 8 (Ky. App.
1995) (quoting OAG 78-626). Here, the Fiscal Court’s description of the purchase
order notebooks is sufficient to establish that they are the equivalent of “preliminary
drafts” or “notes” because they are tentative versions of information used as a basis
for the fuller statement that appears in the final and official purchase orders
contained in FiscalBooks. Accordingly, the Fiscal Court did not violate the Act when
it denied the request for these books under KRS 61.878(1)(i).
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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
1
The Appellant claims the Fiscal Court is entitled to maintain such notebooks under the Local
Governments General Records Retention Schedule, “Purchase Order/Requisition Reference and
Tracking
Instruments,”
Series
L5013,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/Local%20Record…
ernmentGeneralRecordsRetentionSchedule.pdf (last accessed Feb. 6, 2024). However, the generic
description of this record series is applicable to a software system and does not require documentation
to be kept on paper.#16
Distributed to:
Ms. Linzey Lewis
D. Barry Stilz, Esq.
Hon. Jim Gazay