25-ORD-032
February 3, 2025
In re: Ryan J. Dischinger/Louisville Metro Government
Summary: The Louisville Metro Government (“Metro”) violated the
Open Records Act (“the Act”) when it failed to issue a response within
five business days of receiving it. However, Metro did not violate the Act
when it denied a request for policies and procedures that are still in
preliminary draft form and exempt under KRS 61.878(1)(i).
Open Records Decision
On December 14, 2025, Ryan J. Dischinger (“Appellant”) submitted a request
to Metro for “all documentation available regarding policies and procedures specific
to [Metro’s] Homeless Services Division.” The Appellant also requested “any policies
applicable to the possession of firearms or other weapons by members of the Homeless
Services Division.” On January 2, 2025, having received no response from Metro, the
Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” Here, the
Appellant submitted his request to Metro on December 14, 2024, but had not received
a response as of January 2, 2025. Metro, on appeal, “admits that it did not provide a
timely response to” the Appellant’s request. Thus, Metro violated the Act when it
failed to respond to the Appellant’s requests within five business days.
On appeal, Metro now denies the request under KRS 61.878(1)(i) and (j)
because “the policies and procedures requested are still in preliminary draft form
containing preliminary recommendations in which opinions are expressed or policies
formulates
or
recommended.”
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 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, Metro explains that the responsive records contain “thoughts and
opinions” created during “the drafting process and are therefore preliminary.” Metro
further explains that “[t]hese recommendations and opinions are tentative versions
of information that will be used to create the final and official policies and procedures”
but that “no final agency action has been taken.” The Office found that
communications containing edits or suggested changes to a preliminary draft are
within the scope of the “preliminary drafts” exception under KRS 61.878(1)(i). See,
e.g., 24-ORD-035; 22-ORD-204; 21-ORD-089; 16-ORD-180. Because the policies and
procedures the Appellant requested have not been finalized, they are exempt under
KRS 61.878(1)(i). Once finalized, the policies and procedures are subject to inspection
if no other exception applies. See Univ. of Ky., 830 S.W.2d at 378. Accordingly, Metro
did not violate the Act when it denied a request for policies and procedures that have
not been adopted, are still undergoing revisions, and had not yet been finalized by
Metro.1
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
1
Because KRS 61.878(1)(i) is dispositive of the issues on appeal, it is unnecessary to address Metro’s
alternative argument under KRS 61.878(1)(j).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
#007
Distributed to:
Ryan J. Dischinger
Alice Lyon
Nicole Pang
Natalie S. Johnson
Annale Taylor