24-ORD-193
September 11, 2024
In re: Kristin Turner/Fayette County Public Schools
Summary: The Fayette County Public Schools (“FCPS”) did not violate
the Open Records Act (“the Act”) when it denied a request for notes
under KRS 61.878(1)(i).
Open Records Decision
Kristin Turner (“Appellant”) submitted a request to FCPS for “talking points
and remarks for protect our school’s events”; “email communication[s] regarding . . .
Protect our Public Schools” events or events related to opposition to “Amendment 2”;
email communications between five FCPS employees; and email communications
that were an invitation or announcement related a “Protect our Schools” event on
FCPS property. In response, FCPS provided records related to the request for talking
points with portions redacted pursuant to KRS 61.878(1)(i) and (j). This appeal
followed.1
On appeal, FCPS maintains the redacted records are exempt under KRS
61.878(1)(i) and (j). KRS 61.878(1)(j) exempts from inspection “[p]reliminary
recommendations, and preliminary memoranda in which opinions are expressed or
policies formulated or recommended.” This exception is distinct from KRS
61.878(1)(i),
which
exempts
from
inspection
“[p]reliminary
drafts,
notes,
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency.” The distinction is important
because Kentucky courts have held 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.” Univ. of Ky. v. Courier–Journal & Louisville Times Co., 830
1
FCPS also stated that it had no records responsive to the Appellant’s request for email
communications that were an invitation to, or an announcement of, any event held on FCPS property.
FCPS also stated that the request for email communications between five FCPS employees was not
specific enough to be completed. The Appellant has not challenged these portions of FCPS’s response.S.W.2d 373, 378 (Ky. 1992). But neither KRS 61.878(1)(i) nor (j) discusses 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. In
other words, 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). See, e.g., 21-ORD-089 (agency
properly relied on KRS 61.878(1)(i) to deny inspection of the “first draft” of a report
that was later adopted).
Here, FCPS states that the redacted pages contained proposed “talking points”
for speeches by two FCPS employees. FCPS explains that the talking points
“combined district information and language from previous op-eds written” by the
employee. FCPS further claims that, although one employee “may have reviewed the
talking points before the event, he did not refer to them during the event or use them
during his statement.” The Office has previously held that the notes used to give a
speech remain exempt under KRS 61.878(1)(i) even after the speech is given. See 21-
ORD-168. FCPS has explained that the talking points were a “general guide and loose
outline for oral presentations” and were not intended to give notice of final action.
Thus, the talking points are “notes” within the meaning of KRS 61.878(1)(i).
Accordingly, FCPS did not violate the Act when it withheld the talking points under
KRS 61.878(1)(i).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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
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 61.878(1)(j).#343
Distributed to:
Kristin Turner
Andria Jackson
Demetrus Liggins
Alex Garcia
Carmine G. Iaccarino