25-ORD-113
May 2, 2025
In re: Danny Maiden/Office of the Attorney General
Summary: The Office of the Attorney General (“the Office”) did not
violate the Open Records Act (“the Act”) when it invoked
KRS 61.878(1)(i) and (j) to withhold records.
Open Records Decision
Danny Maiden (“Appellant”) submitted a request to the Office seeking “all
records from” a specific criminal case and investigation related to the Carrollton
police and a specific individual. In response, the Office stated that it possessed one
record responsive to the request, but that it is exempt under KRS 61.878(1)(i), (j), and
(h). Regarding its invocation of KRS 61.878(1)(i) and (j), the Office explained that “the
record is an internal working document that is in its draft form.” Regarding its
invocation of KRS 61.878(1)(h), the Office explained that “the investigation is in its
very early stages” and the record’s release would “pose a concrete risk of harm” of
“tipping off suspects or leading to the destruction of evidence” and would “reveal the
identity of suspects informants, and witnesses.” This appeal followed.1
On appeal, the Appellant states only that the Office “failed to provide concrete
risk of harm associated with the release of the records as required by”
KRS 61.878(1)(h). However, the Appellant ignored the Office’s invocation of
KRS 61.878(1)(i) and (j), under which the Office correctly withheld the record.
“Preliminary drafts, notes, correspondence with private individuals, other
than correspondence which is intended to give notice of final action of a public agency”
may be exempt from inspection under KRS 61.878(1)(i). And “[p]reliminary
1
After this appeal was initiated, the Office identified additional records it determined might be
“potentially responsive” to the Appellant’s request and provided redacted copies of those records to the
Appellant. This portion of the Office’s response is not at issue in this appeal.recommendations, and preliminary memoranda in which opinions are expressed or
policies formulated or recommended” may be exempt from inspection under
KRS 61.878(1)(j).
On appeal, the Office further explained how the record is exempt under
KRS 61.878(1)(i) and (j). The withheld record is a “case opening document” used to
consolidate an investigator’s “initial impressions” of a case and “recommended next
steps” in one document. The Office explains that the investigator will document his
notes regarding “information initially gathered at the beginning of the investigation”
including “potential witnesses [and] suspects.” This information is then used as the
basis for the “initial recommendations by the investigator.” Finally, the Office also
explained that the record is maintained as “an internal working document,” meaning
it remains “in its draft form.”
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 Office has explained that the “case opening document” is the single
document used by the investigator to document all his or her notes regarding a
specific case. As such, those notes are exempt under KRS 61.878(1)(i). Further, the
“case opening document” also contains the investigator’s “initial recommendations”
related to a case. Those recommendations are “[p]reliminary recommendations”
exempted under KRS 61.878(1)(j). Finally, because the record is an “internal working
document” that is continually updated and is still “in its draft form,” the entire record
is also exempt as a draft under KRS 61.878(i). Accordingly, the Office did not violate
the Act when it withheld the responsive “case opening document” under
KRS 61.878(1)(i) and (j).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.
2
Because the record at issue is exempt under KRS 61.878(1)(i) and (j), it is unnecessary to examine
the Office’s alternative grounds for denial.Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#138
Distributed to:
Danny Maiden
Brystin Denguessi Kwin