Tuesday, November 8, 2016

Preliminary memo in Mayfield personnel issue are exempt from disclosure

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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