Tuesday, November 8, 2016

If a record deals with prosepctive actions an agency may properly withhold it from a request

A public agency can withhold information that relates to prospective actions.

On Sept. 23, Attorney General Andy Beshear issued an opinion in the matter of In re: Erica Peterson/Energy and Environment Cabinet, 16-ORD-212.

Erica Peterson, with WFPL News, requested documents from the Energy and Environment Cabinet  that requested items issued by the commissioner to the staff, including intraoffice memos.

The cabinet responded on Aug. 12 stating it found one document relating to her request but withheld in under the exemptions of KRS 61.878(1)(h), (j), and (k).

Peterson appealed that decision. Beshear noted the cabinet had failed to meet the three-day time frame for response, but it was not brought up on appeal, so it was inapplicable to the appeal in front of the attorney general.

In his opinion, Beshear cited 94-ORD-135, which had previously held that intraoffice memoranda that do not represent the agency’s final action may be withheld from inspection.

He found that disclosure of he memo may interfere with the cabinet’s internal decision-making, which entitles the cabinet to withhold the document until it is adopted as part of a final action by the agency.

Therefore, the cabinet did not violate the Open Records Act when it withheld an intraoffice memo from disclosure to Peterson.

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