Blog Post | 114 KY. L. J. ONLINE | February 20, 2026
“Preliminary” by Policy? AI Policy’s Impact on Open Records in Kentucky
By: Nathan Brummett, Staff Editor, Vol. 114
Public agencies across the Commonwealth are rapidly adopting generative AI, necessitating consideration of internal policies to address its use.[1] Policy creators have generally focused on protecting citizens’ privacy, public accountability, and data security.[2] However, as a recent Kentucky Attorney General Opinion (“Opinion”) shows, a carefully crafted policy may allow these agencies to shield their AI usage from the general public.[3] Kentucky public agencies and their policymakers should consider the decision’s impact on their Open Records Act obligations.
The Kentucky Open Records Act (“The Act”) was enacted in 1976 to increase transparency in the Commonwealth’s government.[4] The Act requires public agencies to provide requested documents to the public, subject to fourteen exceptions.[5] The recent Opinion arose out of one of these exceptions, which permits the withholding of drafts and notes which lead to a final agency action.[6] Public agencies have been accused of using this “oft-cited” exception to shield documents from the public eye.[7] Indeed, the history of decisions citing this provision has protected a litany of documents from production.[8] As a policy matter, so-called preliminary notes are protected because they encourage “full and frank discussion[s]” amongst public employees to ensure appropriate decision making.[9] According to this theory, requiring the release of thoughts during the decision-making process could lead to the stifling of contrary opinions and undermine confidence in the decision making process.[10] Further, because preliminary notes will be adopted or rejected as part of the agency’s final decision, they may not be reflective of the agency’s actions and a matter of public record.[11]
This principle framed the Attorney General Office’s (“AGO”) analysis when it concluded that Louisville Metro Government (“Metro”) did not violate the Act by withholding records of its employees’ ChatGPT logs in response to a direct request for them.[12] The AGO noted that when employees provide input to AI tools, they are “brainstorm[ing] and process[ing] ideas,” making record of input “akin to initial notes kicking off the drafting process.” [13] Further, the AGO found that Metro required human review and editing of all AI output before it could become finished product, protecting the AI’s responses from production.[14] Notably, the AGO expressly limited its holding to reliance on the specifics of this policy, and did not wholly limit AI chat logs from production.[15]
Comforting those who may rely on it, the principles of the AGO’s decision are doctrinally sound, finding support not just within but also beyond the Commonwealth.[16] The federal Freedom of Information Act (“FOIA”) contains a deliberative-process privilege, designed to distinguish between predicational drafts and final agency statements.[17] Washington state’s Open Records Act contains a similarly worded provision, which the state’s courts have found is specifically designed to permit “frank and uninhabited discussions during the decision-making process.”[18]
Considering these decisions and policy implications, the practical guidance is relatively straightforward. Agencies seeking to limit their production to final products should recall the Act in crafting their internal AI governance. First, policies should require some form of human review, prohibiting AI responses from being adopted in a “copy-and-paste” method. Second, agencies should go further and expressly define AI interactions as assistance in drafting, rather than creation of finished products.[19] Finally, employee training should emphasize this new and developing field to ensure end users are aware of the risks of AI usage. Agencies that follow this guidance can place themselves on the forefront of AI usage in public agencies while still ensuring they remain compliant with the spirit of the Act.[20]
[1] See, e.g., Mayor Greenberg Announces First AI Pilot Project to Improve Permitting Process, Louisville Metro Gov’t (Jan. 7, 2026), https://louisvilleky.gov/news/mayor-greenberg-announces-first-ai-pilot-project-improve-permitting-process; CIO-126: Artificial Intelligence Policy, Commonwealth Off. of Tech. 1, 1 (Oct. 6, 2025), https://technology.ky.gov/policies-and-procedures/PoliciesProcedures/CIO-126%2520Artificial%2520Intelligence%2520Policy.pdf&ved=2ahUKEwjKiPfz5sqSAxW26ckDHe_5LXIQFnoECB8QAQ&usg=AOvVaw3CU861P_976TqaQ_Vt-lcO.
[2] CIO-126, supra note 1, at 2–3; AI Guidance, E. Ky. Univ., https://www.eku.edu/in/guides/ai-guidance (last visited Feb. 8, 2026).
[3] 25 Ky. Op. Att’y Gen. No. ORD-365 (Nov. 19, 2025).
[4] The Open Records Act, Commonwealth of Ky., https://transparency.ky.gov/accountability/Pages/openrecords.aspx (last visited Feb. 8, 2026).
[5] Id.
[6] Ky. Rev. Stat. Ann. § 61.878(1)(i) (West 2026).
[7] John Cheves, Digging Into Government Documents: How Does the KY Open Records Act Work?, Lexington Herald-Leader (Sept. 19, 2025, at 04:45 EST), https://www.kentucky.com/news/politics-government/article312159362.html.
[8] Records shielded because they were considered “preliminary” drafts or notes have included the governor’s daily schedule, unaccepted contract proposals found in negotiations, tapes of county board of education meetings, and discussions of a merger between a university and private hospital. See Courier-J. & Louisville Times Co. v. Jones, 895 S.W.2d 6, 10 (Ky. App. 1995); 04 Ky. Op. Att’y Gen. No ORD-81; 89 Ky. Op. Att’y Gen. No. OAG-93; Univ. of Louisville v. Sharp, 416 S.W.3d 313, 314 (Ky. App. 2013).
[9] ORD-365, supra note 2, at 2 (quoting Ky. Rev. Stat. Ann. § 61.878(1)(i)).
[10] See Erin Hoffman, The Deliberative Process Privilege in Kentucky, 25 J. Nat’l Ass’n Admin. L. Judges 485, 487 (2005).
[11] Id. at 486 (“The privilege is meant to protect an official's ability to communicate openly without fear that each idea may be revealed through discovery or the media”).
[12] ORD-365, supra note 2.
[13] Id. at 3.
[14] Id. at 2–3.
[15] Id.
[16] See, e.g, EPA v. Mink, 410 U.S. 73, 87-89 (1973); Hearst v. Hoppe, 580 P.2d 246, 252 (Wash. 1978).
[17] Mink, 410 U.S. at 87–89.
[18] Hearst, 580 P.2d at 252.
[19] While it is unlikely a fact-finder would find such a policy standing alone as determinative, it would consider such a policy as a factor that would be suggestive of an outcome like the one in Metro’s case. See Wal-Mart Stores v. Wright, 774 N.E.2d 891 (policies “are merely evidentiary and not to serve as a legal standard”) (quoting Mayo v. Publix Super Mkts., 686 So.2d 801, 802 (Fla. Dist. Ct. App. 1997)).
[20] Practitioners should recall that in addition to complying with the letter of the Act, they are required to ensure they do not subvert its intent by taking actions that obstruct public access to records. See Ky. Rev. Stat. Ann. § 61.880(4) (West 2026).