24-ORD-087
April 1, 2024
In re: Kurt Hanscom/City of Edgewood
Summary: The City of Edgewood (the “City”) violated the Open Records
Act (“the Act”) when its initial response failed to explain how the cited
exception applied to the records it withheld.
Open Records Decision
Kurt Hanscom (“Appellant”) submitted a request to the City to inspect the bids
it received for a storage building and the information packet it sent to its council
members for its meeting on March 4, 2024. The City timely denied his request, stating
only, “per KRS 61.878(1)(j)—preliminary recommendations in which opinions are
expressed. This document could be available after the [March 4] meeting so long as
the issue is resolved.” On March 4, before the City’s meeting occurred, the Appellant
initiated this appeal.1
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). When a public agency denies inspection of public records, it must
“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. The agency must “provide particular and detailed information,” not merely a
“limited and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
1996). “The agency’s explanation must be detailed enough to permit [a reviewing]
1
On appeal, the City asserts it already provided, in its response to a prior records request it received
from the Appellant, the records responsive to the Appellant’s request for the bids to build the storage
unit. The Appellant does not deny the City’s assertion that he was provided the responsive records.
Accordingly, any dispute regarding the Appellant’s request for bid records is now moot. See
40 KAR 1:030 § 6. But the Appellant maintains his challenge to the City’s withholding of the City
Council packets under KRS 61.878(1)(j) because the City relied on this exception to deny his prior
request.court to assess its claim and the opposing party to challenge it.” Ky. New Era, Inc. v.
City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013).
Here, the City denied the Appellant’s request and merely quoted the text of
KRS 61.878(1)(j), which exempts from disclosure “[p]reliminary recommendations,
and preliminary memoranda in which opinions are expressed or policies formulated
or recommended.” The City’s response was “limited and perfunctory” because it did
not explain what records it was withholding or how KRS 61.878(1)(j) applied to any
of the records withheld. See, e.g., 22-ORD-007; 21-ORD-202; 21-ORD-035. As a result,
the City violated KRS 61.880(1).2
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/ Matthew Ray
Matthew Ray
Assistant Attorney General
2
The City responded to this appeal on March 4, the same day the appeal was initiated and before
its meeting occurred. It explained that it denied the second part of the Appellant’s request for the
“entire counsel packet” because it “includes memos from CAO and Department heads along with draft
minutes from the last meeting.” As such, the memos contained preliminary recommendations and
opinions for the City to consider at the meeting and no action had been taken at the time of the
Appellant’s request. If the City took final action at its meeting and adopted the recommendations
contained in the withheld memos, then their preliminary status would be lost. See Univ. of Ky. v.
Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992). However, the Office has
previously held that packets containing meeting materials remain preliminary until after the meeting
at which the recommendations are presented and acted upon. See, e.g., 23-ORD-326. Further, the
meeting minutes from the previous meeting remain a preliminary draft, exempt under
KRS 61.878(1)(i), until approved at the next meeting. See KRS 61.835.#155
Distributed to:
Kurt Hanscom
Belinda Nitschke
Frank Wichmann
John Link, Mayor