24-ORD-035
February 14, 2024
In re: Rachana Pradhan/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the
Cabinet”) did not violate the Open Records Act (“the Act”) when it
withheld records that were “preliminary drafts” under KRS 61.878(1)(i)
or “preliminary recommendations” under KRS 61.878(1)(j).
Open Records Decision
On December 18, 2023, Rachana Pradhan (“Appellant”) requested a copy of a
“change order” submitted by the Cabinet to a government contractor, Deloitte
Consulting LLP (“Deloitte”), concerning the removal of an electronic system barrier
blocking access to the Kentucky Health Benefit Exchange Self Service Portal for
individuals determined ineligible for Supplemental Security Income benefits. The
Appellant also requested copies of “all emails, attachments, text messages and other
communications sent between [Cabinet] personnel and employees of [Deloitte] whose
email domains include ‘@deloitte.com” since January 1, 2023. In response, the
Cabinet denied the request “because the responsive records are preliminary records
consisting of the change order, interoffice emails, and correspondence with private
individuals not intended to give notice of final agency action, under KRS 61.878(1)(i),
[and] ‘preliminary recommendations, and preliminary memoranda in which opinions
are expressed or policies formulated or recommended[,]’ which are exempt from
disclosure under KRS 61.878(1)(j).” This appeal followed.
The Appellant claims the change order is a final agency action because the
Cabinet has submitted it to Deloitte. However, the Cabinet asserts that the change
order, at this time, is merely a preliminary draft subject to “additional revisions”
following discussions between the Cabinet and Deloitte. The Cabinet further
describes some of the withheld emails as discussions of “whether additions should be
made to the current draft of the change order or whether a new change order should
be created.” According to the Cabinet, “[c]hange orders can be altered, and until
implemented, are not a final submission from the Cabinet.” Rather, “[s]ubmitting thechange order to Deloitte was just the first step in a process that requires multiple
levels of review, discussion, approval, and changes.”
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.
Furthermore, emails containing edits or suggested changes to a preliminary draft are
within the scope of the “preliminary drafts” exception under KRS 61.878(1)(i). See,
e.g., 22-ORD-204; 21-ORD-089; 16-ORD-180. Once the change order is finalized, the
Appellant will be able to obtain a copy of the final document if no other exception
applies, but preliminary drafts of the change order will remain exempt from
disclosure under KRS 61.878(1)(i).
The Cabinet describes the remaining withheld emails as “interoffice emails
between agency employees discussing how to proceed with the change order,
discussing how to proceed with the Supplemental Security Income renewal process,
and exchanging draft responses and thoughts on what to include for the Cabinet’s
responses to the questions submitted prior to and during a town hall meeting.”
Clearly, the “draft responses and thoughts” constitute part of the process of drafting
the Cabinet’s written responses to questions, and therefore may be characterized as
“preliminary drafts” under KRS 61.878(1)(i). See 23-ORD-116. Further, because the
Cabinet has not taken any final action with respect to its policy discussions, these
emails clearly retain their preliminary status. Accordingly, the Cabinet did not
violate the Act.
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#22
Distributed to:
Ms. Rachana Pradhan
Elyssa S. Morris, Esq.