23-ORD-301
November 6, 2023
In re: Dan Holman/City of Georgetown
Summary: The City of Georgetown (“the City”) did not violate the Open
Records Act (“the Act”) when it denied inspection of notes under
KRS 61.878(1)(i).
Open Records Decision
On October 5, 2023, Dan Holman (“Appellant”) requested various records from
the City regarding the former city attorney’s separation from employment. At issue
in this appeal is the Appellant’s request for “all records that were generated or read
[by] the HR director, and the mayor . . . that reference conditions of employment [the
attorney] failed to meet.” In a timely response, the City provided some records but
withheld others “under KRS 61.878(1)(i) based on their classification as notes serving
as ‘an aid to memory’ that were not adopted as part of a final action.” This appeal
followed.
KRS 61.878(1)(i) exempts from public 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.” Notes may be characterized
as records “created as an aid to memory or as a basis for a fuller statement, as are,
for examples, written or shorthand notes taken at a meeting.” 05-ORD-179. Here, the
City explains the notes in question were created by its Human Resources director
“after her conversations with the counsel for the City, the Mayor and [the] Chief
Administrative Officer” and contain “pertinent information about the timing of
various events, as well as personal health information and other personal private
matters.” The City states the Human Resources director “did not share this document
with the Mayor or anyone else but used it as an aid to memory when she gave the
Mayor her oral report regarding her conversations with the City employee, his breachof the conditions of employment, and her conversation with legal counsel.” Thus, the
records are clearly “notes” within the meaning of KRS 61.878(1)(i).
The Appellant, however, argues the notes must be open to public inspection
because they constitute a “final comprehensive . . . document as [it] relates to the
firing action.” Similarly, in 21-ORD-150, the requester merely asserted “that the
[agency] must have relied on some written record in support of its final action, and
that by default it must have been the [disputed] notes.” But here, as in 21-ORD-150,
the record on appeal indicates the notes were used only to aid the Human Resources
director’s memory while presenting an oral report to the Mayor. The Mayor did not
personally review the notes or rely on them when taking final action. See also 10-
ORD-034 (concluding final agency action was based solely on oral interviews).
Accordingly, the City did not violate the Act when it withheld the notes under
KRS 61.878(1)(i).1
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.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#454
Distributed to:
Mr. Dan Holman
M. Todd Osterloh, Esq.
Hon. Burney Jenkins
1
Because KRS 61.878(1)(i) is dispositive of the issues on appeal, it is unnecessary to address the
City’s alternative arguments relating to KRS 61.878(1)(a) or the attorney-client privilege.