Request By:
Mr. James Utter
Corporation Counsel
City of Paducah
P.O. Box 1407
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Cindy Sexton and Fred Keller of KFVS-TV have appealed to the Attorney General under KRS 61.880 the denial of inspection of certain public records in the custody of the City of Paducah. The records in question are described as reports made by Building Inspector Jim Hammons on his inspection of the Convention Center building being built in Barkley Park. As Corporation Counsel for the City of Paducah you denied inspection of subject records by letter dated October 28, 1980.
You state the reasons for denying inspection of the records the exemptions provided by KRS 61.878(1)(g) and (h) which exempt "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" and "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " You further state:
"Your request for inspection of public records is a reference to a construction project in progress. The correspondence between the developer and the City of Paducah, or reports of the building inspector are preliminary in nature and therefore are covered by the above mentioned exceptions to the open records law.
"These records will be available for public inspection upon the completion of the project and proper certification by the building inspector's office."
OPINION OF THE ATTORNEY GENERAL
We agree with you that correspondence between the developer and the City of Paducah may be withheld from public inspection as "correspondence with private individuals". We do not agree that reports of the Building Inspector are preliminary and are therefore exempt from the mandatory requirements of public inspection. We believe that generally inspection reports of licensing and regulatory agencies are not "preliminary" and are not "preliminary memoranda in which opinions are expressed or policies formulated or recommended" .
It is generally recognized that reports of inspections of enterprises regulated by law are public because of the need for public supervision of the actions of regulator agencies and the public's right to be alerted to unsafe conditions. Privacy: Personal Data and the Law, National Association of Attorneys General, November, 1976, p. 23, contains the following citations:
"New York recently amended its nursing home laws to require that the reports of the periodic inspections of such facilities be made public. A Michigan court has held that reports of nursing home inspections are not confidential. Pennsylvania expressly includes 'reports filed by agencies pertaining to safety and health in industrial plants' within its statutory definition of public records. "
The construction of the foundation of a public building, for instance, is a matter of public concern and if a building inspector has made a report of a defect, the defect should be corrected before it is covered up and forever precluded from further inspection. The report of a building inspector is not a subjective expression of opinion but an objective report of physical facts, and in that sense it is final. This is not to say that the work inspected has finally failed or passed, but if it has a failing defect up to the date of the inspection, the defect must be corrected and a new inspection must be passed before the next stage of construction is commenced.
The public is entitled to know when a restaurant fails to pass a health inspection and such an inspection report is not exempt as "preliminary" under the Open Records Law.
It is the opinion of the Attorney General that reports of building inspections are public records which are open to public inspection by any person under the Open Records Law, KRS 61.870-61.884.
A copy of this opinion is being sent to the requesters.