23-ORD-095
April 26, 2023
In re: Mark Lamkin/Department of Financial Institutions
Summary: The
Department
of
Financial
Institutions
(“the
Department”) did not violate the Open Records Act (“the Act”) when it
withheld “preliminary drafts” or “notes” under KRS 61.878(1)(i) or
records
confidentially
disclosed
to
the
Department
under
KRS 292.500(19)(c).
Open Records Decision
On March 23, 2022, Mark Lamkin (“Appellant”) asked the Department to
provide various records related to an investigation and an administrative action
concerning the Appellant. At that time, the Department withheld certain records
under KRS 61.878(1)(h), (i), and (j). On January 3, 2023, after the investigation and
administrative action had concluded, the Appellant made a second request for “all
documents withheld in connection with” his previous request, and for “copies of all
documents or correspondence from, or on behalf of, the Financial Industry Regulatory
Authority (‘FINRA’), evidencing FINRA expressly deeming as confidential any of the
materials previously withheld.”
In response to the January 3 request, the Department provided numerous
records to the Appellant. However, it withheld certain categories of records, including
“preliminary drafts of the administrative action,” “preliminary drafts [of] pleadings,”
and “drafts of memos of law” under KRS 61.878(1)(i) and (j) and “correspondence from
federal regulatory authorities, including letters, records and information provided by
[FINRA] to [the Department] which the federal regulatory body deems to be
confidential” under KRS 292.500(19)(c).1 This appeal followed.
1
The Department also withheld from inspection email discussions with attorneys protected by the
attorney-client privilege or the work product doctrine, and personal information redacted under
KRS 61.878(1)(a). The Appellant has not challenged the Department’s denial of these records.The Appellant claims the Department may no longer withhold any records as
“preliminary” under KRS 61.878(1)(i) or (j) because the Department has taken final
action and the records do not relate to “any ongoing investigation or administrative
action.” 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 does
not lose its preliminary status when the agency takes final action. See 21-ORD-089.
Further, on appeal, the Department states, “The remaining records consist of
attorneys’ notes and investigative notes that were preliminary to the Department
deciding to pursue or otherwise formalize an administrative action.” This Office has
described “notes” as records “created as an aid to memory or as a basis for a fuller
statement.” 05-ORD-179. Such records do not lose their preliminary status when an
agency takes final action. See, e.g., 21-ORD-150. Accordingly, the Department did not
violate the Act when it withheld preliminary drafts or notes under KRS 61.878(1)(i).
The Appellant further argues the Department violated the Act by withholding
records obtained from FINRA because the Department did not provide “any record
wherein FINRA sent materials to [the Department] and expressly deemed them
confidential.” Under KRS 292.500(19), certain “materials, documentation, and other
information are deemed to have been confidentially disclosed to the department and
to be confidential information under the [Act] and, specifically, under
KRS 61.878(1)(b).”2 This includes “[a]ny materials, documentation, or other
information provided to or otherwise obtained by the department from any other
regulatory or governmental body, including . . . any self-regulatory organization[,]
and which the other body expressly deems to be confidential.” KRS 292.500(19)(c).
The Appellant does not dispute that FINRA is a regulatory body within the meaning
of KRS 292.500(19)(c). Rather, the Appellant claims the Department has failed to
demonstrate that FINRA expressly deemed any of the requested records to be
confidential.
On appeal, the Department explains that FINRA designated records as
confidential by adding a line on each page stating “CONFIDENTIAL TREATMENT
REQUESTED BY FINRA.” In addition, FINRA’s cover letter listing the confidentially
disclosed documents was itself designated as confidential by FINRA.3 Thus, all
FINRA records responsive to the Appellant’s request were confidential under
2
KRS 61.878(1)(b) exempts from disclosure “[r]ecords confidentially disclosed to an agency and
compiled and maintained for scientific research.” However, any records made confidential under
KRS 292.500(19)(c) are also exempt from disclosure under KRS 61.878(1)(l), which applies to all
“[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made
confidential by enactment of the General Assembly.”
3
As evidence, the Department has provided a copy of the cover letter from FINRA, which clearly
contains this designation of confidentiality.KRS 292.500(19)(c), including the designation of confidentiality. Accordingly, the
Department did not violate the Act when it denied the Appellant’s request.
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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#139
Distributed to:
Jeremy S. Rogers, Esq.
Kathryn Adams-Cornett, Esq.
Gary A. Stephens, Esq.
Mr. Chad K. Harlan
Ms. Allison E. Reed