Request By:
Honorable James T. Stinnett
Breckinridge County Judge/Executive
Courthouse
Hardinsburg, Kentucky 40143
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Brian and Theresa Gonnelly, publishers of The Tri-City Times, have appealed to the Attorney General pursuant to KRS 61.880 your denial of their request to inspect a certain document in your possession which they believe to be a public record. Specifically. The Tri-City Times requested to inspect a report made by County Attorney Paul Miller and submitted to you concerning Mr. Miller's investigation of reports that an elected magistrate and misused county road equipment.
You timely responded to The Tri-City Times and denied their request. Although you did not feel subject to the Open Records law, you indicated that it was your opinion that to make the contents of this report public would not be in the best interests of the county. Additionally, you indicated that if the gravity of the situation requires further action, you would be inclined to go to the grand jury.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law.
KRS 67.040 creates the fiscal courts and KRS 67.700 creates the office of county judge/executive, who is the presiding member of the fiscal court. The fiscal court is therefore a "public agency" pursuant to KRS 61.870(1) and subject to the Open Records law. Additionally, since the report in question is a documentary material in the possession of a public agency, it is a "public record" under KRS 61.870 (2) and open to public inspection unless exempted pursuant to KRS 61.878(1).
KRS 61.878(1)(h) exempts from public inspection (except upon court order) those public records which contain:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
It is our opinion that since the report in question was requested by you in your formal capacity as the county judge/executive and ordered to investigate alleged misuse of county road equipment by any elected magistrate, KRS 61.878(1)(h) would apply to exempt this document from public inspection. The report is not indicative of any final action taken by the fiscal court and as such is preliminary. At most, the report can merely be preliminary memoranda gathered by the county attorney in his investigation.
It is therefore the opinion of the Attorney General that your denial of inspection of the report was proper under the Open Records law. The report is exempt as preliminary pursuant to KRS 61.878(1)(h).
As directed by statute, a copy of this opinion is being sent to the requestor, who may initiate further proceedings pursuant to KRS 61.880(5).