Request By:
Mr. Jack C. Blanton
Official Records Custodian
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Jeannie Falknor, city editor, The Lexington Leader, has appealed to the Attorney General under KRS 61.880 your denial of a request to inspect certain public records made by Mr. Ed Bean, reporter for The Lexington Leader. The records are described as follows:
"Report on University of Kentucky Tobacco and Health Research Institute recently completed by Dr. Frederick J. Bollum, Ronald W. Estabrook, Benjamin Burrows, Thurston J. Mann and Russ Ross."
In denying the request to inspect the described records you gave the following reasons:
"The document in question contains information of a personal nature as well as preliminary recommendations and expressions of opinion. In accordance with KRS 61.878(1)(a)(h), I respectfully decline to furnish you the document you have requested."
In her letter of appeal, Ms. Falknor argues that the exemption provided by KRS 61.878(1)(a) which has to do with personal privacy does not apply because there has already been considerable publicity concerning the Tobacco and health Research Institute. She also argues that the exemption provided for preliminary memoranda does not apply because one of the authors of the report has told her that there will be no followup report by the panel and, therefore, the report is final and not preliminary.
In response to our request, you have sent us a copy of the report in question for our review in issuing this opinion.
OPINION OF THE ATTORNEY GENERAL
It is our opinion that the exception provided by KRS 61.878(1)(a), "Public reconds containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" , does not apply to the subject document on this appeal because we believe that this provision applies only to matters entirely unrelated to the performance of public employment. OAG 78-133.
It is the opinion of the Attorney General, however, that you are entitled to withhold the described document from public inspection under KRS 61.878(1)(h), "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " (OAG 79-162, OAG 80-43.) The document is titled "Report to the President of the University of Kentucky Summarizing the Findings of the Site Visit to Evaluate the Research Activities of the Tobacco and Health Research Program and Research Institute." True to its title, the document reports on impressions gained after interviewing various persons connected with the Institute, gives opinions as to features and persons who are worthy of blame and praise and makes recommendations as to how the Research Program can be improved. The document is for the benefit of the President of the University who has a primary role of overseeing the administration of the Institute.
In OAG 80-43 we held that a report made by an investigator of the Internal Affairs Division of the Department of Safety of the City of Louisville on a complaint made against a police officer was exempt from public inspection under KRS 61.878(1)(g)(h) on the basis of the following reason:
"When a complaint is made against a police officer a verbatim record is made by a stenographer under the direction of an investigator of the complaint, the statement of witnesses supporting the complaint, the statement of other officers present at the time of the incident and the statement of any other witness having knowledge of the facts. The investigator submits a report and recommendation to the Chief of Police along with the transcript of the statements. The Chief alone decides what action, if any, is to be taken. The investigator is only an agent of the Chief. The report he makes to the Chief is of the same nature as the notes the Chief could make for himself. If the Chief takes some affirmative action disciplining the officer, the action taken and the cause of the action would be a public record."
The committee of scientists which made the report under consideration was asked to provide President Singletary with a technical scientific evaluation of certain aspects of the program of the Tobacco and Health Research Institute. In conducting its review, the Committee evaluated the efforts and activities of individual staff and faculty members. Ultimately the Committee expressed its findings, opinions and recommendations to the President. Since the Committee was an external ad hoc panel, the Committee had no authority to take final agency action. Such action, if any, can only be taken by the President. The Committee's report was nothing more than the same kind of notes which President Singletary could have made for himself if he had had the time, scientific knowledge and expertise as the Committee members. The Committee was acting only as the agent of President Singletary for collecting information and giving him recommendations. Like the Chief of Police in OAG 80-43, only President Singletary could take final action concerning the Institute. If and when President Singletary takes such action, he is not necessarily bound to follow the Committee's report and recommendation. The report is a classic example of a preliminary memorandum in which opinions are expressed or policies formulated or recommended.
As directed by statute we are sending a copy of this opinion to the requester.