22-ORD-227
October 25, 2022
In re: Gaye Ballard/City of Bardstown
Summary: The City of Bardstown (“the City”) violated the Open
Records Act (“the Act”) when it failed to cite an applicable exemption
and explain how it applied to a requested record. However, the City did
not violate the Act when it withheld records pertaining to an audit as
preliminary because the audit has not yet been completed.
Open Records Decision
Gaye Ballard submitted a request to the City for “a copy of the 2022 annual
financial statement.” In a timely response, the City stated “[t]he statement for the
fiscal year ending June 30th, [sic] 2022 will not be available until it has been
completed and audited no later than March 1, 2023 as required by KRS 91A.040.”
This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant or deny the request. KRS 61.880(1). If the agency
denies 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. Here, the City did not cite any exemption to the Act or
explain how it applied. Accordingly, its initial response violated the Act.
On appeal, however, the City explains that the financial statement is
preliminary because the audit has not occurred. See KRS 61.878(1)(i) (exempting
from inspection preliminary “drafts”). Under KRS 91A.040, the audit must occur no
later than March 1, 2023. Thus, the financial statement remains preliminary until
the audit is completed and presented to the City’s legislative body as required under
KRS 91A.040(7)(e). See, e.g., 08-ORD-094 (upholding the denial of financial
statements as preliminary until the audit is formally presented). Accordingly, theCity did not violate the Act by withholding the financial statement as preliminary at
this time.
A party aggrieved by this decision may appeal it by initiating 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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#378
Distributed to:
Gaye Ballard
Audrey L. Hayden
Gary Little