24-ORD-028
February 6, 2024
In re: Whitney Marion/Kentucky Education and Labor Cabinet
Summary: The Kentucky Education and Labor Cabinet (“Cabinet”) did
not violate the Open Records Act (“the Act”) when it denied inspection
of notes under KRS 61.878(1)(i).
Open Records Decision
Whitney Marion (“Appellant”) submitted a request to the Cabinet for
“[h]earing documentation, notes, question[s] and answers recorded by the hearing
referee” related to a specific unemployment compensation hearing. In response, the
Cabinet provided some responsive records but withheld “internal notes” under
KRS 61.878(1)(i) and KRS 341.190(4).1 This appeal followed.
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.” Notes may be characterized
as records “created as an aid to memory or as a basis for a fuller statement,” such as
“shorthand notes taken at a meeting.” 05-ORD-179. Here, the Cabinet explained that
the requested notes were “intended to aid the [hearing] officer in making a final
determination following the hearing.” The Cabinet also explains that the hearing was
continued to January 31, 2024, and the requested notes were “written down as an aid
to memory” to assist the hearing officer in making a final determination following the
hearing. Thus, the records are clearly “notes” within the meaning of KRS 61.878(1)(i).
Accordingly, the Cabinet did not violate the Act when it withheld the notes under
KRS 61.878(1)(i).2
1
The Cabinet redacted parts of the responsive records under KRS 61.878(1)(a). The Appellant has
not challenged the redactions the Cabinet made. Rather, she asserts only that the Cabinet’s “internal
notes” should have been produced.
2
Because KRS 61.878(1)(i) is dispositive of the issues on appeal, it is unnecessary to address the
Cabinet’s alternative argument relating to KRS 341.190(4).A party aggrieved by this decision may appeal it by initiating an 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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#012
Distributed to:
Whitney Marion
Kimberly A. Grasberger
Jamie Link