Request By:
Mr. John P.C. Silva
City/State Editor
Lexington Herald
Main & Midland
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Your letter to the Attorney General dated August 26, 1982 states the following:
"In an opinion dated August 2, 1932, your office advised the Lexington-Fayette Urban County Government that it improperly denied access to records relating to an investigation of Nolan Simpson, except with regard to certain unidentified records involving any ongoing criminal investigation. OAG 82-413.
"Subsequent to issuance of that opinion, the Lexington-Fayette Urban County Government, through its law commissioner, Mr. Terry Sellars, provided the newspaper access to certain records relating to Nolan Simpson.
"Mr. Sellars did not, however, provide access to a written report prepared by an officer or officers unknown to the newspaper that summarized an investigation of Simpson's background. Specifically, the newspaper understands that the report is an abstract of interviews conducted with lawenforcement authorities in Ohio who were familiar with Simpson's background."
You request our opinion as to whether the Lexington-Fayette Urban County Government is properly withholding the report that you understand to be an abstract of interviews conducted with law enforcement authorities in Ohio who were familiar with Simpson's background.
In OAG 82-413 we held that since Mr. Simpson is deceased, records with information regarding him could not be withheld from public inspection on the grounds of personal privacy. However, in that opinion we included the following:
"This is not to say that some records pertaining to a deceased person may not be withheld from public inspection under one of the exceptions provided in KRS 61.878(1) other than (a)."
From your description of the requested records as a report which is an abstract of interviews conducted with law enforcement authorities in Ohio who were familiar with Simpson's background, we felt it was necessary for us to review the record before issuing an opinion. We, therefore, made a request to Mr. Sellars, Commissioner of Law, to send us the documents and he complied. After reviewing the report we conclude that it is in fact a summary of opinion expressed by law enforcement officials in Ohio, who were largely relying on opinions expressed to them by other persons, and constitutes a three or four tier summary of unsubstantiated opinions as to persons involved in criminal activity, including Nolan Simpson, deceased, and persons still living in Ohio and other states. It expresses suspicions of officers and refers to criminal investigations still being conducted. The communication between the Ohio officers and the Lexington officers was doubtless made with the understanding of confidentiality, the breach of which could have an adverse effect on the ongoing law enforcement investigations mentioned. Such records are exempt from the mandatory requirement of public disclosure by KRS 61. 878(1)(f).
Mr. Sellars' letter to us states:
"I believe the report is clearly a compilation of unsubstantiated opinion obtained from Ohio law enforcement authorities regarding Nolan Simpson. Furthermore, it is a preliminary record which expresses opinions and is exempt from mandatory public disclosure under KRS 61.878(1)(h)."
Our review of the report causes us to agree with Mr. Sellars' Opinion.
In OAG 80-289 we said:
"Records which are preliminary in nature when they are created do not lose their exempt status after final action is taken based on the preliminary recommendations. They continue to be preliminary records."
And in OAG 82-339 we added: "This is all the more true if the preliminary memoranda expresses opinions and recommendations of the writer." The fact that the subject of the record is now deceased does not alter our opinion that the records can be withheld from public inspection because of their character as memoranda expressing opinion.
In summary, it is the opinion of the Attorney General that the Lexington-Fayette Urban County Government has acted consistent with the Open Records Law in denying inspection of the described record under the exceptions provided in KRS 61.878(1)(f)(h).