A memorandum was at issue in an appeal by a local newspaper
against a city in an Open Records request.
Attorney General Andy Beshear issued an opinion on Sept. 22 in
the matter of In re: Mayfield
Messenger/City of Mayfield, 16-ORD-209.
The Mayfield Messenger filed an Open Records
Act request on June 27, 2016, where it requested preliminary memos by the mayor of
Mayfield concerning the suspension of two police department officials being
suspended.
Two days later, the city responded by denying the request of
the newspaper on the grounds that the requested records were exempt through
attorney/client privilege and by KRS 61.878(1)(i) and (j), the preliminary
document exception.
The Messenger appealed on July 1 in a long letter from the
newspaper stating the backstory and why it requested the “preliminary” memo,
which was because it contained reasons why the two officers were suspended.
The city’s response stated the preliminary memo to the mayor summarized interviews and recommended who should still be interviewed.
The two officers who were suspended chose to resign to
forego a public hearing on the allegations.
The city also cited case law and a 2012 Attorney General
opinion, 12-ORD-055, as the preliminary memo was not adopted in any fashion as
the basis for final action.
Beshear’s office requested the documents for a private
viewing and the city complied,
redacting names, other than those of the two officers.
The attorney general found that the records sought by the
Messenger were not adopted as part of the final action of the resignation of
the two officers and remained preliminary in nature and thus exempt from
disclosure.
He also found that the documents met the elements of
attorney/client privilege, because it was made between an attorney and client
for the purposes of legal representation.
Due to both claimed exemptions being found as valid by
Beshear, the city of Mayfield was not in violation of the law.
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