23-ORD-009
January 20, 2023
In re: Adam Lye/Oldham County School District
Summary: The Oldham County School District (the “District”) did not
violate the Open Records Act (“the Act”) when it denied a request for
records related to an ongoing disciplinary proceeding involving a public
employee under KRS 61.878(1)(i) and (j) because no final action has
occurred.
Open Records Decision
Adam Lye (“Appellant”) submitted a request to the District for “emails, texts,
memos, [and] policies” related to the suspension of one of its employees. In a timely
response, the District denied the Appellant’s request under KRS 61.878(1)(i) and (j)
because “there has been no final action and . . . the records . . . are preliminary.” This
appeal followed.
The District denied the request under both KRS 61.878(1)(i) and (j), which this
Office has recognized are two separate and distinct exemptions. See, e.g., 21-ORD-
168 (regarding preliminary “notes”).1 KRS 61.878(1)(i) exempts from inspection
1
The distinction is important because Kentucky courts have held “investigative materials that were
once preliminary in nature lose their exempt status once they are adopted by the agency as part of its
action.” Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). But
neither KRS 61.878(1)(i) nor (j) discuss preliminary “investigative materials.” Rather, KRS 61.878(1)(i)
relates to preliminary drafts and notes, which by their very nature are rejected when a final report is
approved. KRS 61.878(1)(j) relates to “preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or recommended.” Thus, a first draft is not
“adopted” when a second draft is written, and the first draft is always exempt under KRS 61.878(1)(i).
But a recommended policy may or may not be “adopted.” If it is, then the memorandum expressingrecords which are “preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give notice of final action
of a public agency.” KRS 61.878(1)(j) exempts from inspection records that are
“preliminary recommendations, and preliminary memoranda in which opinions are
expressed or policies formulated or recommended.”
The Office has previously held that records related to an ongoing investigation
or disciplinary proceeding are preliminary and exempt from inspection under
KRS 61.878(1)(i) and (j). See, e.g., 21-ORD-169 (records related to a licensure
proceeding involving a nurse); 16-ORD-231 (records pertaining to ongoing
investigation into allegations of public employee misconduct or discipline); 14-ORD-
234 (records related to the suspension and ongoing investigation into a medical
physician). Such records are exempt from disclosure unless and until such records
are adopted and made a part of the investigative agency’s final action. See Univ. of
Ky. v. Courier-Journal & Louisville Time Co., 830 S.W.2d 373, 378 (Ky. 1992) (finding
that “investigative materials that were once preliminary in nature lose their exempt
status once they are adopted by the agency as part of its action”).
Here, the District states that “there has been no final action” in the disciplinary
proceedings pertaining to the records responsive to the Appellant’s request.
Accordingly, the District did not violate the Act when it denied the Appellant’s
request.2
A party aggrieved by this decision may appeal it by initiating 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.
that proposed policy is no longer preliminary and is subject to inspection. If it is not, then the
memorandum remains preliminary and is exempt under KRS 61.878(1)(j).
2
The District additionally claimed that some of the withheld records are protected by the attorney-
client privilege and exempt from inspection under KRS 447.154, KRE 503, and CR 26.02(3). However,
because this Office finds the District properly withheld the records under KRS 61.878(1)(i) and (j), it
declines to further address the District’s reliance on the attorney-client privilege.Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#410
Distributed to:
Adam Lye
Eric G. Farris
Jason Radford