Request By:
Mr. James R. Renneisen
The Louisville Times
Frankfort Bureau
614B Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have appealed to the Attorney General, as provided by KRS 61.880, the denial of the inspection of certain records in the custody of the Kentucky Registry of Election Finance. The records in question are described as follows:
"All records, complaints, investigative reports and actions of the registry and board or investigators working for the board in the matter of a complaint of campaign finance law violations against gubernatorial candidate Carroll Hubbard Jr. and/or public official or private individuals in Breathitt County upon which the board acted on May 24, 1979 in special meeting."
The Registry of Election Finance denied your request by letter dated May 25, 1979, citing KRS 121.140 as the grounds for its decision. KRS 121.140 reads as follows:
"Any registered voter who believes a violation of this chapter has occurred may file a complaint under oath with the Registry. Such complaint shall be kept confidential pending final determination of the merits of the complaint by the Registry. The Registry shall conduct a preliminary investigation of the merits of such complaint. If the Registry determines that there are no reasonable grounds to believe that a violation has occurred, the complaint shall be dismissed. If the Registry determines that there are such reasonable grounds, it shall give notice summoning the persons believed to have committed the violation to a hearing. The Registry shall adopt such regulations to govern the conduct of a hearing. The Registry itself, if it has reasonable grounds to believe that a violation of this chapter has occurred, shall initiate action and notify the Attorney General or the appropriate Commonwealth's Attorney of the suspected violation."
You state that you believe that the Registry has taken final action on the complaint and that the Registry's file on the case should therefore be made available to the public. The Registry takes the position that the complaint is under investigation pending a final determination on the merits, and therefore the file is confidential.
We believe that we do not need to reach the question of whether as a matter of fact the Registry has taken final action on the complaint because we believe that the file in question can be withheld from public inspection on other grounds, namely, that the file is composed of preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended, as exempted under KRS 61.878(1) (g) (h).
You describe the records you want to inspect in an all-inclusive manner. Some of the records, such as "investigative reports", will probably always be considered preliminary and therefore exempt from inspection. The nature of such records will not necessarily change even when the Registry has completed final action. Records described as "actions of the Registry and Board" should be available to you when such actions are put into the minutes of the Board. Without being directed to any specifically described document, we believe that all of the records concerning the case in question are preliminary at this time, and therefore the Board was within its authority in denying inspection.
You also requested that the Attorney General make available to you the report made to him by the Registry of Election Finance on subject case.
As a part of the prosecutorial system the Attorney General must decline to comply with your request to inspect the Registry's report for the reasons stated in OAG 78-639 (copy enclosed). Until prosecution is completed, or a decision has been made not to prosecute, the Registry's report and recommendation will be kept confidential by this office.
As directed by statute, a copy of this opinion will be sent to the Kentucky Registry of Election Finance.