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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