Request By:
Carol M. Palmore
General Counsel
Department of Labor
U.S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Ms. Kimberly K. Greene, Attorney, has appealed to the Attorney General pursuant to KRS 61.880 on behalf of Mr. Hunt Helm, reporter for The Courier-Journal, your denial of Mr. Helm's request to "inspect and copy the state Labor Department's audit of the City of Shively, along with any supporting documents that pertain to back pay owed by the city to its police department employees."
Your denial of inspection was based on KRS 61.878(1) (f) and (h). Specifically, you felt the audit and supporting documents were exempted against a "premature release of information to be used in a prospective . . . administrative adjudication" and as "preliminary recommendations and preliminary memoranda in which opinions are expressed." Additionally, you are of the opinion that the audit and demand for back pay will result in litigation, and release of this information at this time will be both premature and injurious to the department's case.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial of inspection was proper under the Open Records law.
As a public agency pursuant to KRS 61.870(1), the documentary materials prepared by the Kentucky Department of Labor are public records under KRS 61.870(2) and open to public inspection unless exempted under KRS 61.878. In this instance, the audit and supporting documents are exempted.
Specifically, KRS 61.878(1) (f) exempts from public inspection:
(f) Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
This office has consistently held that audit reports are exempt from public inspection when there is a possibility of prospective law enforcement action or administrative adjudication. Mrs. Palmore had indicated that this possibility exists. After the law enforcement action or administrative adjudication is complete or a decision is made to take no action, the final audit will be open to public inspection. See, OAG 76-633. Until that time, the audit report and supporting documents concerning the demand for back pay are investigatory materials for use in these prospective actions.
Although KRS 61.878(1) (f) exempts these documents, it is our opinion that insofar as the Department of Labor's audit report has been presented to the City of Shively, KRS 61.878(1) (h) is not applicable. This document would constitute a final and complete report upon presentation, and would no longer be considered preliminary. Supporting documents that do not constitute part of the final report would, on the other hand, be exempt as preliminary drafts or notes under KRS 61.878(1) (g) and preliminary recommendations and memoranda containing opinions under KRS 61.878(1) (h). Therefore, although documents constituting the final audit report would be open to public inspection after prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action, preliminary documents not constituting the final audit report but which were used in preparation of it would never be open to public inspection.
Therefore, it is the opinion of this office that the audit reports and supporting documents concerning the demand for back pay prepared by the Department of Labor in an audit of the City of Shively are exempt from public inspection until prospective law enforcement action or administrative adjudication occurs, or a decision is made to take no action.
As directed by statute a copy of this opinion is being sent to the requester who has the right to initiate further proceedings under KRS 61.880.