Request By:
Mr. Robert W. Keats
Legal Counsel
Metropolitan Sewer District
400 South 6th Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. Jon L. Fleischaker has appealed to the Attorney General under KRS 61.880 your denial of inspection of certain records in your custody as legal counsel for the Louisville and Jefferson County Metropolitan Sewer District. The described records which were withheld from inspection are described as "all records pertaining to monitoring tests done in Louisville sewers since February 13, 1981." Other records which were requested but not denied were "all records of compliance discharge tests at the Morris Forman Treatment Plant since February 13, 1981."
By letter dated May 15, 1981 you denied inspection of the records claiming that they are excepted from mandatory public disclosure by KRS 61.878(1)(g), (h) and (i). You explain that you consider the monitoring tests as "preliminary notes or preliminary memorandums." You further state "any reports pertaining to the monitoring tests which might have been generated as a result of the February 13, 1981 sewer explosion have been done at the request of MSD lawyers and are therefore protected from discovery by the attorney-client privilege."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that monitoring test results reported by employees of MSD do not fall under the exemption of 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." We believe that such reports are statistical data and as such are not exempt from mandatory public inspection.
In OAG 80-596 we held that 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, not preliminary. We hold reports of monitoring tests to be of the same factual nature, and, therefore, not preliminary but final.
You also state that the monitoring test results are exempt by KRS 61.878(1)(i), "all public records or information the disclosure of which is prohibited by federal law or regulation" , but you do not cite any federal law or regulation which makes such statistics confidential.
Your final grounds for withholding the requested records is that they were generated by the February 13, 1981 sewer explosion at the request of MSD lawyers and are therefore protected from discovery by the attorney-client privilege. We do not agree with your conclusion and you have given no rationale or cited any court rule which with authorize a public agency to withhold such statistical information when the request is made directly to the agency, not to its attorney.
For the foregoing reasons we hold that you have violated the Kentucky Open Records Law, KRS 61.870-61.884, in denying access to records pertaining to monitoring tests done in Louisville sewers since February 13, 1981 requested by Mark Pfeiffer, a reporter for WHAS, Inc.
As directed by statute a copy of this opinion is being sent to Mr. Fleischaker, attorney for the requester.