Request By:
Secretary Buddy H. Adams
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Honorable Jon L. Fleischaker, attorney for The Courier-Journal, has appealed to the Attorney General pursuant to KRS 61.880 your denial of a request made by reporters Mike King and Bob Peirce to inspect certain documents in your custody as Secretary of the Cabinet for Human Resources (CHR). While granting permission to inspect the majority of the documents requested, CHR denied the reporters' request to inspect:
"1. Any complaints made about incidents and/or care at any of the state (mental) institutions.
2. A record of any investigation conducted by the Inspector General of CHR, or any other state agency, concerning those complaints.
3. Any and all reports stemming from those investigations, including any final reports concerning the disposition of the complaints."
Furthermore, Mr. Fleischaker indicates that the denial was communicated by telephone and no effort was made to explain the basis for the denial.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial of inspection of final reports, complaints spawning final reports, and investigatory material incorporated into final reports was improper under the Open Records law.
Once final action has been taken by a public agency, the final report and any documents incorporated into and made a part of the final report are open to public inspection. Complaints are deemed incorporated into the final report due to their role as initially spawning the investigation upon which the final report was rendered. City of Louisville v. The Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982).
Therefore, Mr. King and Mr. Peirce are allowed to inspect
1. Final reports concerning the disposition of any complaints made about incidents and/or care at any of the state mental institutions;
2. The complaints which spawned the final reports; and
3. Investigatory records arising out of the complaints if incorporated into the final report.
Complaints and investigatory material of pending administrative or law enforcement adjudications are exempt from public inspection pursuant to KRS 61.878(1)(f). Additionally, KRS 61.878(1)(g) and (h) will exempt "preliminary drafts, notes, correspondence with private individuals" and "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." However, any of these documents incorporated into the final report will be open to public inspection.
It should also be mentioned that your denial communicated by telephone was procedurally improper. KRS 61.880(1) requires a written response to any request for inspection of public records. Due to the bulk of the material requested, Mr. Fleischaker indicated that CHR's untimely telephone response outside the three (3) day statutory mandate was not an issue. However, KRS 61.880(1) requires a written denial containing a "statement of the specific exception authorizing the withholding of the record and how the exception applies to the record withheld." CHR failed to do this.
As directed by statute, a copy of this opinion is being sent to the requestor. Should you decide not to comply with this opinion, you may initiate further proceedings pursuant to KRS 61.880(5).