Request By:
Mr. David L. Morgan, Executive Director
Kentucky Heritage Council
The State Historic Preservation Office
677 Comanche Trail
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. Lowry Watkins, Jr., has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of his November 1, 1991, request to inspect certain records in the possession of the Kentucky Heritage Council. Specifically, Mr. Watkins requested access to "any and all materials" relating to the Oxmoor Preservation and Conservation Easement, including correspondence, photos, memos, letters, notes, drafts, faxes, telegrams, books, papers, maps, cards, drawing, surveys, sketches, renderings, blueprints, and plans.
You responded to Mr. Watkins' request in a letter dated November 1, 1991, releasing eighteen pages of official correspondence, four hundred photographs and accompanying negatives, and two aerial photographs. However, you denied that portion of Mr. Watkins' request pertaining to correspondence with private individuals containing information of a personal nature, relying on KRS 61.878 (1) (a) and (g). In addition, you withheld a number of documents, which you characterized as preliminary drafts, pursuant to KRS 61.878 (1) (a) and (g).
In his letter of appeal to this Office, Mr. Watkins objects to your partial denial of his open records request. He maintains:
The grantor of the preservation and conservation easement did not assemble the land in the easement nor [sic] construct any of the buildings and improvements thereon. As a member of the family and a genealogist and historian I would like access to the denied items for historical reasons.
He asks that we review your partial denial of his request to determine if the Council acted consistently with the Open Records Act. For the reasons set forth below, we conclude that the Kentucky Heritage Council properly denied that portion of Mr. Watkins' request pertaining to correspondence with private individuals and preliminary drafts.
OPINION OF THE ATTORNEY GENERAL
In a conversation with the undersigned on December 6, 1991, Ms. Susan Yessin, Rural Preservation Coordinator for the Kentucky Heritage Council, explained that the records which the Council withheld relate to a conservation easement created under the Uniform Conservation Easement Act, KRS 382.810, et seq ., and consist of correspondence with the property owner and preliminary drafts of the document granting the easement. She indicated that Mr. Watkins had been afforded access to the easement, in its final form, as well as all correspondence between the Council and other state agencies involved in the project. Because the disputed documents contain information of a personal nature and are of a preliminary character, Ms. Yessin explained that the Council refused to release them under authority of KRS 61.878 (1) (a) and (g).
KRS 61.878 (1) (g) authorizes the nondisclosure of "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." This Office has consistently recognized that an agency has a permissive right to withhold correspondence with private persons which does not represent final action of that agency. OAG 83-79; OAG 83-385; OAG 84-98; OAG 85-148; OAG 90-13; OAG 91-21; cf. OAG 90-7. We believe that this line of opinions is dispositive of the instant appeal. Clearly, correspondence between the Council and the owner of the property in which the terms and conditions of the easement are informally discussed falls squarely within the parameters of the exception for correspondence with private individuals. Accordingly, the council properly withheld these records.
With respect to Mr. Watkins' argument that the Council erred in refusing to release preliminary documents consisting of drafts of the instrument creating the conservation easement, we find that these records were also properly excludable under KRS 61.878 (1) (g). In a number of earlier opinions of this Office, the Attorney General has held that preliminary drafts of a document which are prepared for internal use, and do not represent that document in its final form, are not subject to mandatory disclosure, but can be withheld from public inspection. OAG 79-326; OAG 83-166; OAG 86-5; OAG 86-32; OAG 86-42; OAG 91-78. We, again, believe these opinions dispose of Mr. Watkins' appeal. The Council, having release the executed easement instrument, discharges its duty under the Open Records Act.
Because the objections raised by Mr. Watkins are settled by KRS 61.878 (1) (g), we will not address the propriety of your invocation of KRS 61.878 (1) (a). As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Lowry Watkins, Jr., who may challenge it by instituting proceedings in the appropriate circuit court within thirty days pursuant to KRS 61.880 (5).